SUMMARY OF MOTION FOR A PRELIMINARY INJUNCTION
Digital Recognition Network, Inc. v. Herbert, No. 2:14-cv-00099-CW-PMW (D. Utah)
Digital Recognition Network, Inc. (“DRN”) and Vigilant Solutions, Inc. (“Vigilant”) have moved for a preliminary injunction to enjoin the application and enforcement of the Utah Automatic License Plate Reader System Act (“the Act”). See 2013 Utah Laws 447 (codified at Utah Code § 41-6a-2001 to § 41-6a-2006, and § 63G-2-305).
The Act infringes on Plaintiffs’ constitutionally protected speech, in violation of the First and Fourteenth Amendments to the United States Constitution, because it prohibits them, on pain of criminal penalties, from using automatic license plate reader systems to disseminate and collect license-plate data. In addition, the Act causes Plaintiffs imminent and irreparable injury. Accordingly, it must be preliminary enjoined to prevent the ongoing and continuous violation of Plaintiffs’ constitutional rights.
DRN uses photographs and image-content analysis techniques to serve the financial services, insurance, and vehicle repossession industries. When DRN and others use such techniques in an effort to locate the alphanumeric content displayed on license plates, this application of the technology is sometimes referred to within the industry as “automatic license plate reader” (“ALPR”) technology. DRN’s cameras, which are typically mounted on its affiliates’ tow trucks, take photographs as the camera-equipped vehicles drive on the public roads. Each photograph is analyzed in order to determine whether it contains a license plate and whether the license-plate number matches the license plate of a vehicle that is sought for recovery by one of DRN’s clients, which include automobile lenders and insurance carriers. DRN then disseminates the matching license-plate data to its clients, which use it to locate cars that should be repossessed and to locate cars that have been stolen or fraudulently reported as stolen. Additionally, DRN provides license-plate data to Vigilant, which then shares the data with law enforcement agencies for purposes that range from utilizing near real-time alerts for locating missing persons and stolen vehicles to the use of historical license-plate data to solve major crimes such as child abductions.
Plaintiffs are likely to succeed on the merits of their First Amendment claim. The use of ALPR systems to disseminate and collect information by taking a photograph is constitutionally protected speech. Because the Act’s restrictions on such speech are content-based and speaker-based, they are subject to heightened scrutiny, which they cannot survive. In any event, the Act manifestly violates the protections afforded commercial speech even absent such content- and speaker-based restrictions. Specifically, the Act (1) does not further a substantial governmental interest, (2) does not directly and materially advance a governmental interest, and (3) restricts more speech than is necessary to further the governmental interest at issue. In addition, the Act’s numerous gaps and exceptions further demonstrate that the statute violates the First Amendment.
First, the Utah legislature apparently enacted the Act to advance a purported governmental interest in protecting the “privacy” of publicly-divulged license-plate numbers. The State does not, however, 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 sensitive or private information whatsoever. Indeed, the function of license plates is to serve as a government-mandated means of public identification, which makes it irrational for the government to invoke a privacy interest in license-plate data. For these reasons, the State cannot carry its heavy burden to demonstrate that it has a substantial interest in protecting the privacy of license-plate data.
Second, the State cannot demonstrate that the Act directly and materially advances any privacy interest. The only remotely rational governmental interest that could conceivably be invoked here is the interest in preventing the dissemination of license-plate data in circumstances where that data will be combined with improperly-obtained personal information derived from another source and then misused in a way that creates privacy concerns. Even if this was a substantial governmental interest (which it is not), the Act does not directly advance this interest; instead, it is inherently an indirect and attenuated means of furthering the purported privacy interest, because the State is suppressing speech relating to publicly-displayed license plates in an effort to prevent misuse of private data that might be combined with license-plate information. Moreover, the Act does not materially advance the purported privacy interest, because there is no evidence that ALPR systems implicate privacy concerns that are any different from whatever privacy concerns would arise from the disclosure of a single photograph of a license plate or from writing down license-plate numbers or typing them into a laptop’s database.
Third, the speech restrictions in the Act are not adequately tailored because they are more extensive than necessary to serve any purported privacy interest that might be at stake. In fact, there are numerous obvious alternatives that would impose a lesser burden on speech.
Finally, even if a blanket ban on ALPR use would be constitutionally permissible, the Act’s numerous gaps and exceptions fatally undermine the credibility and efficacy of the ALPR restriction’s privacy justification. When a statute imposes a selective ban on speech, the government must justify the distinctions and exceptions found in the statute based on its asserted rationale for regulating the speech. In direct contravention of this precedent, however, the Utah legislature enacted a statute that is riddled with inconsistencies and exceptions that arbitrarily permit a wide array of speech that has precisely the same “privacy” implications as speech the statute prohibits.
Because Plaintiffs are likely to succeed on the merits of their claim, the three other preliminary-injunction factors are almost invariably satisfied. On the irreparable injury factor, courts have repeatedly recognized that the loss of First Amendment freedoms, for even short periods of time, constitutes irreparable injury. Moreover, the remaining factors governing the issuance of a preliminary injunction—the effect of a preliminary injunction on Defendants and the public interest—also tip decisively in favor of Plaintiffs. The State cannot possibly show that it will be harmed by a preliminary injunction, which would simply allow Plaintiffs to engage in additional speech. And it is well established that there is no public interest to be served in the enforcement of an unconstitutional law.