Exactly one year ago in Utah, a Republican state senator introduced a bill that imposed new regulations on how license plate readers (LPRs) could be used in the Beehive State. That bill was signed into law on April 1, 2013.

As Ars has reported before, these scanners, which have been increasingly deployed in cities and towns across the US, can read, analyze, and store 60 plates per second. Typically, the LPR checks an unknown plate against a "hot list" of wanted or stolen vehicles. But the tricky part is that LPRs aren’t just looking for suspected bad guys. They almost always record and retain the time, date, and precise location of every license plate scanned, often for years or longer.

While LPRs are most often used by law enforcement agencies, there are also private firms that engage in such data collection as well, creating their own private database which can be used for repossessing cars. This data can also be shared with law enforcement.

Among other restrictions, the Utah law effectively forbids the private collection of LPR data and stipulates that government agencies can only share it under specific circumstances for a maximum of nine months unless otherwise ordered to by a court.

Two major private LPR firms—Digital Recognition Network and Vigilant Solutions—are suing Utah’s governor and attorney general, arguing that they have a First Amendment right to collect data on license plates, which are displayed in public on open roads.

The case seemingly pits the privacy rights of individuals against the First Amendment rights of corporations to engage in constitutionally protected speech. Legal experts say that this case presents a unique challenge in balancing these two constitutional rights, and it may have implications for future, similar laws across the country.

"Whether such laws are ultimately upheld or ruled unconstitutional will have a huge impact on whether more comprehensive privacy regulations are enacted and what they will look like," Clark Asay, a law professor at Penn State University, told Ars.

"These companies’ dissemination of this type of information would likely be considered at least commercial speech, in which case some First Amendment standards would apply (which the Act may still pass, despite the objections of these companies)," Asay said. "Where it becomes a stretch in my mind is to argue that the First Amendment guarantees that they have the right to collect the information in the first place."

“License plates contain no private information whatsoever”

In the companies' 16-page complaint, which was filed in Utah federal court on Thursday, DRN and Vigilant seek a "permanent injunction against the application or enforcement of the Act." They state that prior to the law’s passage, DRN sold a total of 10 LPR camera kits to five repossession and towing companies operating in Utah; those cameras began operation between May 2010 and February 2012.

The alleged First Amendment violation, the plaintiffs argue, occurs because taking a photograph is constitutionally protected. "The State does not 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 private information whatsoever," argue the plaintiffs. "Moreover, the photographic recording of government-mandated public license plates does not infringe any 'privacy' interest that concededly is not infringed when the photographer views the plate. Thus, the State cannot carry its heavy burden to demonstrate that it has a substantial interest that is served by the Act."

State Senator Todd Weiler, the Republican who authored the Utah bill, doesn’t buy that argument.

"I’m befuddled with that being speech," he told Ars. "As you know, this technology... can cut through fog, it can see in the dark, it’s very invasive—it doesn’t matter if you’re going 80 mph. It’s not just a photograph, it’s the direction of travel, time, and GPS location. If it was just pictures, nobody would buy it. I think it’s an invasion of privacy. This technology is very intrusive, and I don’t think you can argue with a straight face that this is the same thing as taking a picture of a car."

Other legal experts contend that the plaintiffs’ case is likely to succeed because of the language of this specific law.

"The law restricts the collection and use of data with an ‘Automatic license plate reader system,’" Fred Cate, a law professor at Indiana University, told Ars. "The restriction on collecting data might conceivably pass First Amendment scrutiny, but not the ban on using the data. I think it is very likely that a court will strike that down.

"This reminds me of the state limits on collecting and using physician prescribing data," Cate said. "As those laws spread, many people just assumed they were constitutional, until [2011, when] the Supreme Court in Sorrell v. IMS Health said the laws were unconstitutional. One of the key points the Court made is that states are not free to favor some speakers or some uses of data over others. That is exactly what the Utah license plate law does by permitting a handful of uses and outlawing all others. The case for invalidating laws restricting the collection and use of license plate data is even stronger since the data is visible and is collected in public."

Further Reading Your car, tracked: the rapid rise of license plate readers

"One major difference here is that all of this information is publicly available," Asay said. "And so that is likely to be a distinction that people against such regulations will point to in making the case, essentially, that this is publicly available information that we are allowed to collect and disseminate. But again, I think that argument fails. There are a number of statutes—the Video Voyeurism Act and California’s Anti-Paparazzi laws, to name a few—that make illegal collecting certain types of information, even in public places. As far as I know, such laws have been held constitutional."

However, State Sen. Weiler also told Ars that he’s currently working with the American Civil Liberties Union of Utah to make a revision to his law, which he says "may negate" this lawsuit.

"I’m opening a bill file today," he said, but he added that he may not be successful given that the current Utah legislative session ends in mid-March.