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Florida city accused of invading driver privacy with automated license plate recognition systems

Citizens argue that the surveillance of their driving violates the Fourth Amendment.

(CN) — Three residents of Marco Island, Florida, claim in a lawsuit filed Monday that the privacy of drivers in the area is being violated by the use of automated license plate recognition systems.

The New Civil Liberties Alliance filed the lawsuit in federal court in Florida on behalf of Shannon Schemel, Stephen Overman, and Michael Tschida, who claim that this continuous monitoring of their movements in and out of the city is a violation of their Fourth Amendment right to be free from unreasonable searches and seizures.

"Fourth Amendment protection is the expectation of privacy in one's physical location and movements. People do not surrender that privacy right simply because they are moving along public roads or are otherwise venturing into the public sphere," the complaint states.

At least three automated license plate recognition systems have been deployed throughout the city since April 2021. They photograph and record the license plate information of every vehicle that enters and exits Marco Island, and log the time and date.

With no commercial train or airline services, the island city is only accessible by driving over one of three major bridges.

According to the NCLA, "by systematically collecting data about individual citizens for an extended period of time and retaining that information for up to three years, Marco Island is engaged in a search that is subject to constitutional limitations and that is unlawful in the absence of a judicial warrant."

The plaintiffs further argue that surveillance becomes a “search” in need of a warrant when the government gathers information about an individual for an extended period of time, which "can easily draw a detailed profile of their day-to-day life."

“There is simply no need to retain data collected by the ALPR systems for up to three years, as Marco Island does. Such a wealth of information enables the city to piece together details of each resident’s personal habits and movements, and thus its retention constitutes a violation of those residents’ constitutionally protected privacy rights," NCLA litigation counsel Sheng Li said in a press release.

In the 1979 decision in Delaware v. Prouse, the U.S. Supreme Court declared that “an individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation."

The Marco Island Police Department claims the systems reduce crime and enhance safety in the community by alerting officers when a license plate matches one from official "hotlists."

These hotlists include information on stolen vehicles, individuals with suspended licenses or warrants, sex offenders, vehicles associated with AMBER alerts and missing persons, individuals on watchlists and more.

According to the Marco Island Police Department, the system assisted the Collier County Sheriff's Department with safely locating a missing autistic teenager.

"The system has a strong deterrent value which improves community safety and helps us proactively reduce crime and traffic incidents before they occur," Police Chief Tracy Frazzano said in a press release.

However, the NCLA claims that Frazzano's message contains a different meaning: "In other words, those entering Marco Island are warned: we are watching you," the complaint states.

While automated license plate recognition systems could prove valuable in police investigations, or in helping other government agencies reduce traffic and environmental pollution, there are many questions about the legal and ethical risks posed by this invasive technology. 

According to data from the Department of Justice’s Bureau of Justice Statistics, 93% of police departments in cities with populations of 1 million or more use their own automated license plate recognition systems, some of which can scan nearly 2,000 license plates per minute.

At least 16 states have passed laws regulating the use of these devices or the use of the data collected.

The pandemic has also been used by states to justify use of the systems. In Rhode Island, law enforcement was directed in 2020 to look for New York license plates in order to identify incoming travelers required to self-quarantine.

“Marco Island is rapidly accumulating a large database that provides a detailed picture of Plaintiffs’ daily movements. Although those traveling in public must accept that other individuals, including police officials, may be watching them for some portion of their travels, they may legitimately expect that they will not be subject to continuous electronic monitoring," NCLA Senior Litigation Counsel Rich Samp in a press release.

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