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State argues computer code not speech

By Aziza Musa

This article was published August 2, 2014 at 3:27 a.m.

Computer code that captures license plate information is not speech and cannot be constitutionally protected, state attorneys contended during a federal court hearing Friday.

Assistant Attorney General Patrick Hollingsworth said the code has no meaning until it is combined with other personally identifiable information. The matter arose after two companies sued the state in federal court, saying a state law preventing companies from collecting and selling data from license plate scans violated their First and 14th amendment rights.

Digital Recognition Network -- a Fort Worth-based company -- and Vigilant Solutions, based in Livermore, Calif., have sued Gov. Mike Beebe and Attorney General Dustin McDaniel in their capacities as elected officials and asked a federal judge to grant a preliminary injunction, which would make the law temporarily invalid.

The law, which went into effect last year, restricts the use of automatic license plate readers by anyone other than law enforcement and parking enforcement agencies. Arkansas Code 12-12-1801 also permits only those agencies to retain the license plate data for up to 150 days unless the data are part of an ongoing investigation.

The two companies have said the law restricts them from collecting and selling the license plate information, which they said is protected by the First Amendment. The companies sold the license plate data to lenders and insurance companies but have since stopped.

Both parties during the hearing Friday made their arguments before U.S. District Judge Brian Miller, who said he expected to issue an order on the injunction request in about two weeks.

Digital Recognition Network uses photographs of license plates and image-content analysis -- developed by Vigilant Solutions -- for financial services, insurance and vehicle-repossession businesses. Vigilant's cameras are usually mounted on affiliates' tow trucks or vehicles owned by repossession companies and snap pictures of license plates while traveling. The pictures include a date and time stamp, along with GPS coordinates of where the photograph was taken.

At the same time, software in the vehicles cross-checks the license plate information with a database of plates of vehicles wanted for repossession. The software will alert the affiliate if the vehicle is wanted for repossession, and the affiliate will need to call a dispatch number to verify the vehicle's status.

Vigilant has turned over the data to law enforcement agencies "usually at no cost" to help find missing persons or stolen vehicles, the lawsuit states. Digital Recognition Network sells the license plate data to vehicle lenders and insurance companies and had sold three license plate reader kits to separate Arkansas companies -- Arkansas Repossessors, Absolute Towing and Recovery & Remarketing -- for $15,825 each before the law took effect.

State attorneys Friday questioned the heads of each company -- along with Josh Niles, who owns Absolute Towing -- about whether the cameras could be used improperly through surveillance.

Niles said his company, which repossesses vehicles, does not do surveillance.

Heads of both companies said it wouldn't make sense to buy the equipment for $15,000 to $20,000 to survey when a person or agency could just follow someone around.

Michael Carvin, an attorney representing the two companies, said the law restricts the content of the companies' speech.

"I can't think of more public speech than license plates," he said. "The state makes you have a license plate. But they banned the dissemination of license plate information."

Miller compared the law to a hypothetical city ordinance limiting residents from using a bullhorn late at night. The state's law, Carvin said, doesn't limit the bullhorn use but says a certain group can't use the bullhorn late at night.

But Hollingsworth said the law only says the companies can't collect the data using a particular method -- the companies' system. The state also contended that no private individuals can use the system, but law enforcement can use it "when it's important."

Carvin said the computer code is speech because it is a fact, similar to the price of goods or the alcohol content. The state banned the dissemination of what it conceded as public information, he said.

"So why are they trying to suppress something that isn't private?" Carvin asked. "That makes no sense."

Also during Friday's hearing, Hollingsworth argued the attorney general's office and the governor couldn't be sued over the matter because they don't enforce the law.

But attorneys for the two companies said court precedent in Nebraska had already rejected that argument.

Metro on 08/02/2014

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