Court was back in session last week in Miami, the latest step in what could eventually lead to a landmark case regarding the issue of constitutional privacy rights and Automatic License Plate Readers (ALPRs).
The hearing in Florida's Third District Court of Appeal pertained to the Raul Mas Canosa v. Coral Gables case, in which the Coral Gables resident feels that data collected from the city's 14 cameras and three mobile units should not be allowed to be stored in a database accessible to law enforcement across the country for three years.
But the three judges at Wednesday's arguments, Eric William Herndon, Monica Gordo and Alexander Bokor, had some pointed questions to Mas Canosa's attorney, Sheng Li, with the Washington-based New Civil Liberties Alliance.
"Do the (pictures) reveal anything about his religious or political beliefs?" asked Herndon. "No" was the reply.
"Your client has not suffered (any) actual harm or damages, correct?" he asked. "So, you have no standing."
Sheng said that in September 2018, over a five-month period, "We received 80 pages of photos of the appellant driving in Coral Gables and outside of Coral Gables, and a 2020 collection of 400 additional photographs."
Mas Canosa's attorney wanted to make clear that his client is not challenging the actual license plate readers or where they are positioned, which can help in certain law enforcement cases, but just the three-year storage of data and the sharing of that data.
In his original lawsuit, Mas Canosa felt like people with bad intentions could hack into that data system and track or plot his (or others') daily routine. He said he was easy to spot, with his dog often looking out the vehicle's window.
But, Frank Shepherd, a former judge with the Third District Court of Appeal and now an attorney with part of the GrayRobinson team representing the City of Coral Gables, said, "We say they do not invade (Mr. Mas Canosa's) constitutional rights, at the federal or state level. The cameras only take pictures of the (license) plate."
Shepherd said there are 5,128 intersections and 260 miles of public access roads across Coral Gables.
"These cameras ... only create images of license plates, on random occasions," he said.
Judge Herndon then asked: "Can they accidentally capture an image if the windows are rolled down?"
"Mr. Mas said there was a picture of his dog ... I've looked at all the photographs, and I cannot find nothing of Mr. Mas ... all you're going to find are pictures of license plates," Shepherd said.
And, in any case, Judge Gordo pointed out, "it's not an accurate image."
"The pictures do not identify the individual," Shepherd confirmed. "It's a picture of a license plate to be used for law enforcement purposes."
Gordo said, "On a particular day (Mas Canosa) said he was captured eight times." She asked, should there be concern if he could be traced to, say, a certain political site, then St. Theresa's church and then the grocery store?
Replied Shepherd: "They do not indicate (in this case) where he came from or where he is going ... yes, if the government is asking, sure, I don't fault that."
The contract which Coral Gables uses its ALPR cameras (similar to those on Key Biscayne) is tied in with a company called Vigilant to make available the license plate images to other law enforcement agencies.
"They would be the ones with the only access to the plate," Shepherd said. "The data is not sold to anybody or made public. It's used for a particular (law enforcement reason)."
According to the New Civil Liberties Alliance, in 2015, Coral Gables authorized the use of 17 ALPR cameras to form a “geofence” perimeter around the city to provide maximum surveillance potential 24 hours a day.
By 2019, the ALPR program had collected more than 106 million images, 101 million of which it retained for three years pursuant to the city’s data retention plan. Additionally, Coral Gables elected to share the ALPR data with 68 other jurisdictions, including federal law enforcement, the NCLA noted.
Discovery in the case revealed that, as of January 2019, 393 photographs were collected of their client, Mr. Mas Canosa, driving throughout Coral Gables. Each photograph includes the precise date, time, latitude and longitude of his vehicle, and an estimate of the nearest address and intersection, the NCLA said.
Sheng said not only does this collection of photos violate his client's Constitutional rights under the Fourth Amendment of the Supreme Court, but also runs against Article 1, Section 23 of the Florida Constitution's Right to Privacy. The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects" but as in this case, "only if search and seizure was not involved," Sheng said.
In October of 2018, Mas Canosa filed his original lawsuit against the City of Coral Gables.
In August of 2021, Judge Charles Johnson in the 11th Judicial Circuit Court granted the City of Coral Gables' Motion for Summary Judgment, ruling that the use of ALPR cameras do not violate the Fourth Amendment to the United States Constitution or the “Right to Privacy” in the Florida Constitution.
There are now 30 ALPR cameras throughout Coral Gables, even on a portion of I-95.
Near the end of Wednesday's hearing, Judge Herndon asked Sheng: "(Your client) did not stop driving, did he? Did it have a chilling effect in driving?"
"It's not in the record, your Honor," Sheng replied.
Herndon asked Sheng what he, or his client, would like to see.
"A less intrusive surveillance technique, (data kept) for a short(er) time, and not sharing (the data) with a bunch of jurisdictions," Sheng said.
As far as how long data like this should be kept, Sheng said: "We think duration can be debated."
A ruling in Colorado, for example, found that one year of storage was too long.
Judge Gordo explained that "even the (Judicial) court found no standing because no one (else) asked. ... How does he have an injury? It's only because Mr. (Mas) Canosa and those in the Discovery have seen (the photos)."
A decision on the appeal is expected as early as later this month.