SAN JOSE, CA—A judge late last week dismissed a civil rights lawsuit challenging the constitutionality of police scouring images recorded by San Jose's vast network of automated license plate readers, capping a key legal test for the city's continued use of the surveillance technology.

The ruling by Santa Clara County Superior Court Judge Jeffrey El-Hajj cited state and federal case law in concluding that the plaintiffs "failed to demonstrate a reasonable expectation of privacy in the capturing of license plate data or in later queries of a database of that license plate data."

"There is no reasonable expectation of privacy in license plate data collected from cameras directed solely at public streets," El-Hajj wrote in his decision Friday.

The lawsuit — filed last November by the ACLU of Northern California and Electronic Frontier Foundation, representing the SIREN immigrant rights group and the Bay Area chapter of the Council on American-Islamic Relations — sought an order requiring San Jose police officers to obtain judicial warrants before searching through the hundreds of millions of license plate and vehicle images amassed each year by the nearly 500 cameras installed throughout the city.

El-Hajj rejected arguments by the plaintiffs comparing the readers to other warrantless observation practices that were found by other courts to be illegally intrusive, like cell phone site tracking and granular aerial surveillance. He wrote that the 2018 Carpenter ruling by the U.S. Supreme Court, which found cell phone site tracking to be unconstitutional without a warrant, did not by extension disqualify other surveillance methods.

While the judge firmly dismissed the lawsuit and gave the plaintiffs no allowance to amend their claims, he did cite federal case law suggesting that at some point in the future, constitutional problems could arise as ALPR technology expands its capabilities and reach.

"The city adopted stringent guidelines for its deployment, seeking to balance the use of a significant crime detection and community safety tool with stringent protection of individual privacy rights," City Attorney Susana Alcala Wood said in a statement. "The court's dismissal of the complaint is testament to the fact that the city's ALPR system meets constitutional scrutiny and only gathers information that is already observed from the public rights-of-way."

Andrew Crocker, surveillance litigation director at EFF, said the group "strongly" disagrees with the ruling, noted contrasting rulings around the country, and added "all options for next steps are on the table."

"Just last week a federal court in Oklahoma ruled that queries of ALPR databases are invasive Fourth Amendment searches that violate society's reasonable expectation of privacy against being tirelessly tracked anywhere they drive," Crocker said in a statement.

San Jose is currently defending its use of license plate readers in federal court as well. The Virginia-based Institute for Justice sued the city on behalf of three residents who have similarly objected to being surveilled without any meaningful judicial oversight. One of the plaintiffs in that case described how his home is next to a traffic light with a plate reader, making his every entrance and departure subject to being captured.

Last week's ruling comes amid controversies in San Jose and elsewhere in the Bay Area that have, at minimum, galvanized opposition to the technology and in many instances have led to municipalities curtailing or altogether dropping ALPR systems.

In a revelation last month, a San Jose police officer was fired after using the city's Flock license plate camera database to find a woman who had accused his cousin of domestic violence and shared her vehicle's location with him.

City leaders have firmly voiced their support for the Flock system by extolling the crime-fighting benefits, and credit it with swift arrests in cases like the Black Friday shooting at Valley Fair, and SJPD's 100% annual homicide solve rate over the past few years. They responded to the scandal by proposing more guardrails on access to the Flock database, adding to changes they instituted in March reducing data retention periods and designating protected spaces.

But civil rights groups, including the plaintiffs in the lawsuit just dismissed, contend the officer's abuse of the database embodies the wider threat the surveillance poses to the citizens it's proclaimed to protect.

That posture has gained considerable traction locally: Mountain View, El Cerrito, Santa Cruz, Cupertino, Saratoga and Stanford University have dropped or sharply restricted their use of Flock cameras. Some acted in response to revelations that federal authorities accessed camera data in possible violation of California law isolating state police agencies from federal immigration enforcement, an allegation that has also been made against San Jose.

"Around the country public opinion is outpacing the courts in pushing back against ALPR technology as dangerous mass surveillance," Crocker said.

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