NMA ALERT: A Car’s Black Box and a City’s ALPR Program Put to the Test in two Different Courts

By November 17, 2019General Posts

Two motorists recently won Fourth Amendment decisions. Both cases will likely be appealed, and will have major privacy rights implications for how and where we drive our vehicles.

ALPRs in Florida

Raul Mas Canosa was mad and decided he wasn’t going to take it anymore. The city where he lives, Coral Gables, Florida, tracked his car all over town because of its penchant for surveilling the movements of its citizens with automated license plate readers or ALPRs. He had not been arrested nor even suspected of a crime. “If I’ve done nothing wrong and have no criminal record, why is my city monitoring me?”

Coral Gables, the self-appointed leader in Florida in the use of ALPRs, started its program in 2015 and now has 30 recorders around town including surveillance of an adjacent section of Interstate 95. In 2018, the electronic devices captured the data of 30 million individual license plates.

Working with the New Civil Liberties Alliance (a public interest, pro bono law firm that specializes in cases curbing administrative control), Mas Canosa sued the city for violating his Fourth Amendment rights against search and seizure without probable cause. Coral Gable’s attorneys sought a dismissal but Mas Canosa won the first round!

Miami-Dade County Circuit Court Judge Abby Cynamon agreed with Mas Canosa’s argument that Coral Gable’s use of ALPRs might indeed violate state privacy laws. The judge rejected the city’s attempt to have the anti-camera lawsuit thrown out on the grounds that motorists have no expectation of privacy and that Mas Canosa, in particular, was not harmed because he was not the subject of an investigation.

Judge Cynamon wrote:

“This court finds that there is a bona fide, actual, present and practical need for a declaration as to whether the collection of such information violates the plaintiff’s privacy rights.” She added, “There is nothing abstract, conjectural or ephemeral about the claim since the city has and continues to collect such information about the plaintiff’s vehicle.”

Mas Canosa can now move forward with suing the city. He ultimately wants the data collected to be immediately discarded if there’s no probable cause. The city currently keeps the gathered license plate data for three years as prescribed under Florida law.
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As highlighted in the NMA’s Driving Freedoms Fall 2019 Cover Story Are You Protected from the Little Black Box?, the Georgia Supreme Court ruled in mid-October 2019 that a driver’s black box (electronic data recorder, or EDR) stored information is worthy of privacy protection. The Justices ruled that police must first obtain a search warrant before downloading data from a vehicle’s EDR.

The case involved Victor Lamont Mobley, who was involved in a traffic accident that killed two others in December 2014. Mobley hit a car as it pulled out of a private driveway in front of him. Even though there was no indication of a violation speeding, Henry County police downloaded his car’s EDR contents without Mobley’s permission. The data suggested that Mobley had been traveling 97 mph in his Dodge Charger at the time of the accident. Because of the warrantless download of the black box, he was charged with vehicular homicide and sentenced to seven years in prison.

The Justices agreed with Mobley’s argument that the warrantless search of his EDR data violated his Fourth Amendment rights. Justice Keith Blackwell wrote in the ruling:

“A personal motor vehicle is plainly among the ‘effects’ with which the Fourth Amendment—as it historically was understood—is concerned.” He added, “The retrieval of the data without a warrant at the scene of the collision was a search and seizure that implicates the Fourth Amendment, regardless of any reasonable expectations of privacy.”

Judge Blackwell also said that since the black box permanently stores speed data whenever the airbags deploy, the early warrantless peek at the results was not necessary in determining the cause of the accident. The car was totaled and not at risk of being driven away. The day after the accident, an officer involved in the case actually obtained a warrant to download the data. The Justices affirmed that obtaining a warrant has to be done before a search.

This ruling overturns a lower court decision on the case. It also affects a common practice by Henry County officers of downloading EDRs without getting a court order.

The American Civil Liberties Union and its state chapter were involved in the case, arguing for Fourth Amendment protections for car owners whose vehicles are increasingly capturing information about their driving habits. NMA Member Thomas Kowalick, who has been championing the protection of black box data for over 20 years, also submitted evidence in the case.

Because of the long-term implications to the privacy rights of motorists, the NMA will follow and continue reporting on both of these cases.

If you have a link to an article about a motorists’ rights court case or anything motoring issue, please send the link to the National Office by email nma@motorists.org to be possibly featured in the Motorists.org website’s Driving News Feed and the email Driving News Daily.  Please subscribe to DND, if you have not already, to read the headlines of all the news and views of the day for the Active Driver.

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