THE STATE OF SOUTH CAROLINA

IN THE SUPREME COURT

IN THE ORIGINAL JURISDICTION OF THE SUPREME COURT

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South Carolina Public Interest Foundation, and

John Sloan, individually and on behalf of all others
similarly situated,…………………………….….….……………….………Plaintiffs-Petitioners

v.

South Carolina State Law Enforcement Division, and

Mark Keel, in his official capacity as Chief of
the South Carolina State Law Enforcement
Division………..........................................................................................Defendants-Respondents

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PETITION FOR ORIGINAL JURISDICTION
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Petitioners the South Carolina Public Interest Foundation and John Sloan petition this

Court for Original Jurisdiction pursuant to South Carolina Appellate Court Rule 245, Article V,

Section 5, of the South Carolina Constitution, and Section 14-3-310 of the South Carolina Code.

A proposed Complaint is attached as Exhibit A and incorporated herein by reference, along with

its eight (8) Exhibits.

INTRODUCTION

Without any legislative authorization, the South Carolina State Law Enforcement Division

(SLED) has created and currently operates a statewide surveillance program that relies on

automated license plate readers (“ALPRs”) to maintain a database of hundreds of millions of

photos of vehicle license plates that are stamped with the exact time and location they were taken.

Those photos are collected indiscriminately from vehicles traveling South Carolina roads and

highways. SLED stores every image it collects for three years, regardless of whether the vehicle
or owner is suspected of, or associated with, any legal wrongdoing. Federal, state, and local

agencies may search the database to generate travel and location dossiers on South Carolina

residents—the sort of information the United States Supreme Court has warned “provides an

intimate window into a person’s life, revealing not only his particular movements, but through

them his familial, political, professional, religious, and sexual associations.” Carpenter v. United

States, 138 S. Ct. 2206, 2217 (2018) (internal quotation marks omitted).

SLED’s ALPR surveillance program is proliferating rapidly.1 In 2021, SLED recorded

150,738,105 license plate reads—up from 135,368,308 the previous year, and 26,451,216 in 2014.2

As of July 13, 2022, the database contained over four-hundred million (400,000,000) license plate

reads.3 And the database will continue to expand as municipalities add new ALPR cameras, all of

which may feed into it.4

This case is not about whether such a system is wise, or how best to balance the legitimate

needs of law enforcement against individual privacy interests—those are questions for the General

Assembly to answer, as representatives of the people of South Carolina. Nor is this case about

whether SLED’s program infringes upon constitutional privacy protections. Rather, this case is

about whether an administrative agency may implement such an extensive surveillance program

without any legislative authorization, and without any concomitant restraints on how it exercises

1 Although SLED created its ALPR surveillance database years ago, Petitioners only recently
learned of its existence as ALPRs began to rapidly proliferate across the state. See Exhibit A,
Complaint [hereinafter “Complaint”], at n.2. That proliferation shed light on the SLED program
that has long operated in the shadows and escaped widespread public awareness.
2 See Complaint Exhibit 1, Freedom of Information Act Request # 2022-0118 and Response
from SLED (August 3, 2022) [hereinafter “Complaint Ex. 1, 2022 FOIA Response”], at 4;
Complaint Exhibit 6, SLED’s Response to Freedom of Information Act Request # 2015-153
(March 5, 2015), at 6.
3 See Complaint Ex. 1, 2022 FOIA Response, at 4.
4 See Complaint, at n.2.

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its discretion. The cornerstone of our constitutional system—the separation of powers—requires

legislative authorization. Established rules of administrative law require formal regulations. This

program has neither.

First, administrative agencies like SLED have “only such powers as have been conferred

by law and must act within the authority granted for that purpose.” Bazzle v. Huff, 319 S.C. 443,

445, 462 S.E.2d 273, 274 (1995) (citing Triska v. Dep’t. of Health & Env’t Control, 292 S.C. 190,

355 S.E.2d 531 (1987)). There is no provision in the South Carolina Code that authorizes SLED,

or any state agency, to operate a statewide ALPR program. Second, if SLED’s generic enabling

statutes could be stretched so broadly as to authorize such an expansive surveillance network, one

that depends on technology not even contemplated at the time those statutes were drafted, then

those statutes provide no constraints on SLED’s discretion and therefore run afoul of the

nondelegation doctrine. See Bauer v. S.C. State Hous. Auth., 271 S.C. 219, 232-34, 246 S.E.2d

869, 876-77 (1978). Finally, even if SLED’s ALPR program were legitimately authorized, which

it is not, SLED’s creation and implementation of the program failed to comply with the notice-

and-comment rulemaking requirements of the State Administrative Procedures Act (APA). See

Joseph v. S.C. Dep’t of Lab., Licensing & Regul., 417 S.C. 436, 454, 790 S.E.2d 763, 772 (2016);

id. at 456-66, 790 S.E.2d at 773-78 (Kittredge, J., concurring). SLED has not promulgated any

formal regulations to implement or circumscribe its ALPR program. Instead, the agency’s guiding

document is an informal internal policy—Policy 13.40.5

The lack of legislative authorization for SLED’s ALPR program stands in stark contrast to

other statewide law enforcement databases that the legislature has authorized. Take, for example,

5 See Complaint Exhibit 3, SLED Policy 13.40: Automated License Plate Recognition
[hereinafter “Complaint Ex. 3, Policy 13.40”].

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SLED’s DNA database. Nearly thirty years ago, the General Assembly enacted a statute

authorizing SLED to establish a statewide DNA database and prescribing specific rules for its

operation. See S.C. Code Ann. §§ 23-3-600 et seq. (1994). The General Assembly also has enacted

statutes that authorize and constrain the operation of the statewide criminal justice information

center, criminal gang database, and body-worn camera database, among other programs. See S.C.

Code Ann. §§ 23-3-110 (1962); 16-8-330 (2007); 23-1-240 (2015). In addition, SLED has

conducted public, administrative rulemaking to implement many of these legislatively authorized

programs, including the state DNA database. See S.C. Code Ann. Regs., 73-61 (1999).

Here, Petitioners request only the political process that the South Carolina Constitution

requires. SLED is South Carolina’s premier law enforcement agency. If SLED is to operate a

statewide ALPR surveillance program, then the elected representatives of the people must

authorize it.

No South Carolina court has addressed SLED’s surveillance program. This Court’s

exercise of its original jurisdiction is critical to curtail SLED’s ongoing usurpation of legislative

authority and affirm the bedrock democratic principle of separation of powers.

FACTUAL BACKGROUND

Petitioners detail the relevant factual background in their proposed verified Complaint,

which is attached as Exhibit A and incorporated here as if set forth verbatim. The operative facts

alleged are a matter of public record, and no discovery is necessary to resolve the legal questions

the case presents.

To summarize the factual record, SLED maintains a database of hundreds of millions of

photos of vehicle license plates, each stamped with the exact time and location they were taken.

ALPR cameras automatically capture those photos across the state. The cameras can be: mounted

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in a permanent location (such as a highway overpass); mobile (such as a camera attached to a

vehicle); or portable (such as a trailer that can be temporarily installed). Some are owned by SLED.

Some are owned by local jurisdictions and feed images into the SLED database.

REASONS TO EXERCISE ORIGINAL JURISDICTION

Pursuant to Article V, Section 5, of the South Carolina Constitution, and Rule 245 of the

South Carolina Appellate Court Rules, this Court may exercise its original jurisdiction “[i]f the

public interest is involved.” Doe v. State, 421 S.C. 490, 497, 497 n.5, 808 S.E.2d 807, 810, 810

n.5 (2017) (quoting S.C. App. Ct. R. 245(a)). To determine whether original jurisdiction is

appropriate, the Court specifically looks to the nature of “the public interest involved and the need

for prompt resolution.” Carnival Corp. v. Historic Ansonborough Neighborhood Ass’n, 407 S.C.

67, 80, 753 S.E.2d 846, 853 (2014).

This case presents issues of significant public interest that require prompt resolution. A

sprawling and unauthorized government program circumvents the constitutional lawmaking

process and undermines the separation of the executive and legislative powers. That program is

rapidly proliferating, with the potential to cause irreversible damage to both citizens and the state

unless this Court promptly addresses it.

Accordingly, this case falls squarely within the line of cases in which the Court has

exercised its original jurisdiction to address unlawful executive and administrative overreach. See,

e.g., Adams v. McMaster, 432 S.C. 225, 851 S.E.2d 703 (2020) (challenging the Governor’s

allocation of federal education funding); Senate by & through Leatherman v. McMaster, 425 S.C.

315, 821 S.E.2d 908 (2018) (challenging Governor’s appointment to the Board of Directors for

the Public Service Authority); Amisub of S.C., Inc. v. S.C. Dep’t of Health & Env’t Control, 407

S.C. 583, 757 S.E.2d 408 (2014) (challenging state agency’s ability to suspend administration of

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program); S.C. Pub. Int. Found. v. S.C. Transp. Infrastructure Bank, 403 S.C. 640, 744 S.E.2d 521

(2013) (challenging constitutionality of the state transportation infrastructure bank); Sloan v.

Hardee, 371 S.C. 495, 640 S.E.2d 457 (2007) (challenging legality of appointment of agency

commissioners).

The Court similarly should exercise its jurisdiction here.

I. The Public Interest in Petitioners’ Case Is Manifest.

Unauthorized agency action “presents a threat to our civil society.” Joseph, 417 S.C. at

465, 790 S.E.2d at 778 (Kittredge, J., concurring) (from section III of the concurrence). In Joseph,

the Court’s opinion “embrace[d] completely the excellent comprehensive analysis of

administrative rulemaking set forth in sections I, II, and III of Justice Kittredge’s concurring

opinion.” Id. at 455 n.3, 790 S.E.2d at 773 n.3; see also West Virginia v. EPA, 142 S.Ct. 2587,

2608-09 (2022) (emphasizing the need for clear legislative authorization for significant agency

action). The public has a fundamental interest in ensuring that executive agencies operate within

the bounds of the law. That interest is especially prominent here, where the unauthorized agency

action at issue implicates the privacy and liberty interests of millions of South Carolinians. See

Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 142 S. Ct. 661,

668 (2022) (Gorsuch, J, concurring) (“If administrative agencies seek to regulate the daily lives

and liberties of millions of Americans … they must at least be able to trace that power to a clear

grant of authority from Congress.”).

A. SLED’s License Plate Surveillance Program is Ultra Vires.

An agency or executive officer cannot act without legislative authorization. See Gilstrap v.

S.C. Budget & Control Bd., 310 S.C. 210, 212-14, 423 S.E.2d 101, 103 (1992) (an agency’s

proposed budget plan “exceeded the authority granted to [the agency] by the Legislature”); State

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ex rel. Condon v. Hodges, 349 S.C. 232, 245-46, 562 S.E.2d 623, 630-31 (2002) (the Governor

exceeded his legislative authority in transferring certain funds); Hampton v. Haley, 403 S.C. 395,

409, 743 S.E.2d 258, 265 (2013) (an executive agency “violated the separation of powers by acting

beyond its statutory authority and infringing upon the General Assembly’s power to make policy

determinations”). “[A]n agency, as a creature of statute, is possessed of only those powers

expressly conferred or necessarily implied for it to effectively fulfill the duties with which it is

charged.” Edisto Aquaculture Corp. v. S.C. Wildlife & Marine Res. Dep’t, 311 S.C. 37, 40, 426

S.E.2d 753, 755 (1993) (internal quotations and alterations omitted). When an agency exceeds

those powers, as SLED does here, its actions are invalid as ultra vires. See, e.g., S.C. Pub. Int.

Found. v. S.C. Dep’t of Transp., 421 S.C. 110, 123-24, 804 S.E.2d 854, 861-62 (2017) (Department

of Transportation bridge inspections in a private gated community were ultra vires because they

were not statutorily authorized).

No South Carolina statute mentions ALPR technology, or anything resembling the

extensive, location-tracking database SLED has compiled. This is quite unlike the explicit

statutory authorization governing other SLED databases. For example, the General Assembly has

enacted statutes that authorize, oblige, and constrain SLED’s operation of the statewide DNA

database, S.C. Code Ann. §§ 23-3-610 et seq.; the statewide criminal justice information center,

S.C. Code Ann. §§ 23-3-15(A)(4), 23-3-110 et seq.; the collection and retention of fingerprint data,

S.C. Code Ann. §§ 23-3-40, 23-3-45, 23-3-120, 37-22-270; the sex offender registry, S.C. Code

Ann. §§ 23-3-400, et seq.; the statewide criminal gang database, S.C. Code Ann. § 16-8-330; a

non-prescription drug database, S.C. Code § 23-3-1200; and a body-worn camera database, S.C.

Code Ann. § 23-1-240, amongst others.

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 SLED’s generic enabling statutes do not authorize the ALPR program. In its

communication with local law enforcement agencies, SLED has cited South Carolina Code Section

23-3-15(A)(1) as the ALPR program’s empowering statute. 6 Section 23-3-15(A)(1) vests SLED

with authority over “the investigation of organized criminal activities or combined state-federal

interstate criminal activities, all general criminal investigations, arson investigation and

emergency event management pertaining to explosive devices.” S.C. Code Ann. § 23-3-15(A)(1)

(emphasis added).

This statute authorizes criminal investigations. It does not encompass the collection—and

three-year storage—of license plate data from South Carolina motorists suspected of no criminal

act, who have done nothing to warrant the attention of law enforcement. “Court[s] should give

words ‘their plain and ordinary meaning without resort to subtle or forced construction to limit or

expand the statute’s operation.’” State v. Taylor, 436 S.C. 28, 34, 870 S.E.2d 168, 171 (2022)

(quoting State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010)). “Agencies have only

those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book

to which the agency [may] add pages and change the plot line.’” West Virginia v. EPA, 142 S.Ct.

at 2609 (citation omitted); see also id. at 2622 (Gorsuch, J., concurring) (Congress must provide a

“clear statement” authorizing the agency action, and agencies may not “seek to hide ‘elephants in

mouseholes’” of statutory authorization) (citation omitted)); Joseph, 417 S.C. at 465-66, 790

S.E.2d at 778 (Kittredge, J., concurring) (“If the executive branch, through unelected bureaucrats

and seemingly countless administrative agencies, is going to set policies having the force of law,

the judicial branch must insist on clear delegation from the legislative branch ….”). Indeed, if

6See Complaint Exhibit 7, South Carolina Law Enforcement Division, “Memorandum of

Understanding Pertaining To The Establishment Of The South Carolina Law Enforcement
Division Automated License Plate Reader,” at 2.

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SLED’s enabling statute could be read to authorize the ALPR program, SLED would have virtually

unlimited power to create unilaterally whatever mass surveillance systems it chooses. Surely, that

is not what the legislature intended.

Circumventing the legislative process is not simply a problem of form. It compromises the

very nature of, and reasons for, a representative government. Legislation inevitably involves

tradeoffs by the people’s elected representatives. These are not decisions for unelected

administrative officials. Novel and dramatic technological developments that implicate

fundamental privacy rights especially require legislative authorization. See United States v. Jones,

565 U.S. 400, 429-30 (2012) (Alito, J., concurring) (“In circumstances involving dramatic

technological change, the best solution to privacy concerns may be legislative. A legislative body

is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy

and public safety in a comprehensive way.”) (internal citations omitted)). Indeed, these same

concerns about “the emergence of new electronic technologies that increase[] the government’s

ability to conduct searches” prompted South Carolinians to add a right to privacy provision to our

state constitution. State v. Forrester, 343 S.C. 637, 647, 541 S.E.2d 837, 842 (2001).

Governance of the state’s DNA database is instructive. A statute specifically prescribes the

limited circumstances under which DNA may be collected; sets forth permissible uses of the

database; establishes confidentiality requirements; limits access to the database; creates criminal

penalties for abuses; establishes expungement procedures by which individuals can have their

DNA sample removed from the database; and conditions the continued force of the statute upon

SLED’s promulgation of numerous regulations and the legislature’s continued annual

appropriations. See S.C. Code Ann. §§ 23-3-600 et seq. Over the years, the legislature has amended

the statute several times. See H.R. 3120, 2000 Leg., 113th Sess. (S.C. 2000); S. 492, 2001 Leg.,

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114th Sess. (S.C. 2001); H.R. 3594, 2004 Leg., 115th Sess. (S.C. 2004); S. 429, 2008 Leg., 117th

Sess. (S.C. 2008). To enact the latest amendments to this statute, which expanded DNA collection,

the General Assembly had to override the Governor’s veto. See S. 429, 2008 Leg., 117th Sess.

(S.C. 2008); see also Veto Message from Governor S. 429, R-429 (July 2, 2008) (expressing

concern over the “further encroachment on our civil liberties and privacy rights”). This sort of

careful legislative management of the tradeoffs in any law enforcement database is altogether

absent from SLED’s ALPR program.

In states where ALPR databases have been legislatively authorized, the databases differ in

important ways from SLED’s. Retention periods are measured in days, not years. See, e.g., N.C.

Gen. Stat. Ann. § 20-183.32. Use is limited to the investigation of enumerated criminal and traffic

offenses. See, e.g., Mont. Code Ann. § 46-5-117(d)(V). Captured license plate data may only be

compared with specific hotlists. See, e.g., Ark. Code Ann. § 12-12-1803(b). Access to the database

is restricted to officials with specialized training. See, e.g., Md. Code Ann., Public Safety § 3-

509(c)(2). Privacy protections ensure that information in the database is treated confidentially. See,

e.g., Fla. Stat. Ann. § 316.0777(2). Sharing license plate data with private entities is prohibited.

See, e.g., Minn. Stat. Ann. § 13.824 (Subdivision 2). Detailed reports concerning collection and

use must be published. See, e.g., Neb. Rev. Stat. Ann. § 60-3206(3). Failure to comply with

statutory requirements is grounds for exclusion of evidence. See, e.g., Ark. Code Ann. § 12-12-

1805(b)(4)(B). Individuals harmed by data breaches are armed with a private right of action. See,

e.g., Cal. Civ. Code § 1798.90.54.7

7 The statutory provisions listed in this paragraph are not unique to the states cited as examples for
each provision. Different state statutory schemes often share the same types of restrictions on their
respective ALPR programs. Almost all states, for instance, impose data retention limits. Like North
Carolina, several states limit retention periods to days. See, e.g., Ark. Code Ann. § 12-12-1804(a);

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 Petitioners do not presume to say what a legislatively authorized ALPR database would or

should look like in South Carolina. That is a question for our elected representatives to answer.

But SLED cannot short-circuit that process and make these policy decisions by fiat. Unless and

until our representatives speak, SLED’s creation and maintenance of its ALPR enforcement-and-

surveillance system is ultra vires.

B. If SLED’s License Plate Surveillance Program Were Deemed to Be

Authorized, SLED’s Enabling Legislation Would Violate the
Nondelegation Doctrine.

Even if SLED’s generic enabling statutes could be read so broadly as to authorize the

agency’s creation and implementation of a statewide ALPR surveillance program—a program that

both implicates the most basic privacy interests of South Carolinians and depends on technology

not even contemplated at the time the statutes were drafted—then those statutes violate the

nondelegation doctrine. Nearly 70 years ago, it already was “well settled” that the constitutional

principle of separation of powers precludes “the legislature [from] delegate[ing] its power to make

laws.” S.C. State Highway Dep’t v. Harbin, 226 S.C. 585, 594, 597, 86 S.E.2d 466, 470, 472 (1955)

(holding that a statute “authorizing the Highway Department to suspend or revoke a driver’s

license ‘for cause satisfactory’ to it, is an unconstitutional delegation of legislative power”).

To withstand constitutional scrutiny, a statute that vests authority in an administrative

agency like SLED must, at a minimum, contain “limitations” and “standard[s] to guide” the

agency’s exercise of that authority. Id. at 595, 86 S.E.2d at 470-71. As described above, supra, at

8, SLED’s generic enabling statute vests it with authority over matters such as “the investigation

Calif. Veh. Code § 2413(b); Me. Rev. Stat. Ann. Tit. 29-A, §2117-A(5); Minn. Stat. Ann. § 13.824
(Subdivision 3); Mont. Code Ann. § 46-5-118(1); Neb. Rev. Stat. § 60-3204(1); Tenn. Code Ann.
§ 55-10-302(b). In New Hampshire, data retention is limited to 3 minutes. See N.H. Rev. Stat.
Ann. § 261:75-b(VIII).

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of organized criminal activities,” “combined state-federal interstate criminal activities,” and “all

general criminal investigations.” Thus, the legislature has limited SLED’s general authority to

criminal matters. Yet, SLED is collecting the time-stamped, geo-located data of South Carolinians

for whom there is no suspicion of unlawful conduct whatsoever. If the organic statute’s

authorization to conduct criminal investigations empowers SLED to operate any surveillance

program with merely the potential to aid criminal investigations, then the limitation to criminal

matters is hollow. SLED’s generic enabling statute would be the very type of blank check that the

nondelegation doctrine proscribes, giving SLED unrestrained power to create mass surveillance

systems using ever more invasive and previously uncontemplated technologies.

C. If SLED’s License Plate Surveillance Program Were Deemed Lawfully

Authorized, it Would Violate the South Carolina Administrative
Procedures Act.

Even if SLED’s organic statutes could be read to authorize the agency’s ALPR surveillance

program, and even if this Court determined such a vague delegation of authority did not violate

the nondelegation doctrine, SLED’s implementation of the program violates the state’s

Administrative Procedures Act (“APA”). See S.C. Code Ann. § 1-23-310 et seq. SLED is an

“agency” under the terms of the APA. See S.C. Code Ann. § 1-23-10(1) (defining agencies as

“each state board, commission, department, executive department or officer … authorized by law

to make regulations or to determine contested cases”). As such, the APA requires SLED to provide

the public with notice and an opportunity to comment before promulgating any regulation. See

Joseph, 417 S.C. at 454, 790 S.E.2d at 772.

The APA defines “regulation” broadly: “Regulation means each agency statement of

general public applicability that implements or prescribes law or policy or practice requirements

of any agency.” S.C. Code Ann. § 1-23-10(4). “Whether a particular agency creates a regulation

12
or simply announces a general policy statement depends on whether the agency action establishes

a ‘binding norm.’” Joseph, 417 S.C. at 454, 790 S.E.2d at 772 (quoting Home Health Serv., Inc. v.

S.C. Tax Com’n, 312 S.C. 324, 328, 440 S.E.2d 375, 378 (1994)). “[W]hen there is a close question

whether a pronouncement is a policy statement or a regulation, the agency should promulgate the

ruling as a regulation in compliance with the APA.” Id. (citation and alteration omitted).

Here, SLED’s policy governing its ALPR program—Policy 13.40—constitutes a

regulation subject to the APA’s requirements. See Complaint Ex. 3, Policy 13.40. By its plain

terms, the Policy establishes binding “guidelines” with which all users of SLED’s ALPR systems

must “abide.” Id. at 1; see also id. at 3-4. Specifically, Policy 13.40 regulates who may use ALPR

systems, id. at 3 (Subsection C), how the systems may be used, id. at 2-3 (Subsections A and C),

and who may access SLED’s ALPR database, id. at 4 (Subsection E). It also establishes a binding

rule for SLED’s retention of images generated by ALPR systems. Id. at 4 (Subsection F) (“SLED

will maintain data and images submitted to [SLED’s database] for a period of three years.”).

If there were any doubt as to whether Policy 13.40 establishes a “binding norm,” municipal

police departments themselves have stated their express understanding that the SLED policy is

binding on them. For example, Myrtle Beach Police Department Regulation # 276 provides that

the department “shall adhere to SLED policy and guidelines related to the storage and/or retrieval

of ALPR data as per South Carolina Law Enforcement Division Policy Statement 13:40,

Automated License Plate Recognition.”8

Finally, SLED’s policy, and the program implemented pursuant to it, bind the public

generally: individuals cannot escape the ALPR cameras while traveling on many South Carolina

8Complaint Exhibit 8, Myrtle Beach Police Department, Administration Regulations and

Operating Procedures # 276, Section C.2.

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roads, nor can they prevent their data from being stored in the database for three years. See

generally Elec. Priv. Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 6 (D.C. Cir. 2011)

(holding that a technological change to TSA’s airport screening protocol was a regulation requiring

notice-and-comment because it “substantively affect[ed] the public to a degree sufficient to

implicate the policy interests animating notice-and-comment rulemaking”).

Accordingly, SLED was required to provide notice and an opportunity for public comment

before implementing its ALPR surveillance program. SLED has undertaken notice-and-comment

rulemaking to promulgate regulations for a host of similar law enforcement programs—including

its DNA database (SLED Regulation 73-61, specifying standards for sample collection,

identification, and testing, among others); breathalyzer testing (SLED Regulations 73-3, 5); and

Uniform Crime Reporting (SLED Regulation 73-30). See S.C. Code Ann. Regs. Ch. 73, available

at https://www.scstatehouse.gov/coderegs/Chapter%2073.pdf.

SLED’s failure to engage in that same process here exacerbates the dearth of legislative

authorization for this program. Under the APA, formal regulations must be submitted to the

General Assembly for legislative approval or disproval, with few (inapposite) exceptions. See S.C.

Code Ann. § 1–23–120 (2015); Joseph, 417 S.C. at 461, 790 S.E.2d at 776 (Kittredge, J.,

concurring) (noting that, “[i]n South Carolina, to preserve some semblance of the separation of

powers we once held sacred, an administrative agency may not make law without legislative

oversight and approval”). Yet rather than promulgating and submitting ALPR regulations to the

legislature, SLED has tried to govern its entire statewide ALPR program with what it calls an

internal policy. By failing to subject its ALPR program to the lawful regulatory process, SLED

has insulated itself further from legislative review, foreclosed the availability of either post hoc

legislative approval or democratic guardrails, and continues to grow the Leviathan.

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 In sum, SLED continues to operate its ALPR program without any legislative authorization

or compliance with the most basic principles of administrative rulemaking. This ongoing attack on

the doctrine of separation of powers makes this a matter of great public significance.

II. The Issues This Case Presents Are Urgent and Require Prompt Resolution.

The questions of significant public interest that this case raises require prompt resolution;

SLED’s unlawful and unaccountable surveillance program presents an ongoing, and growing,

violation of the South Carolina Constitution and administrative law. As with other cases over

which this Court has exercised its original jurisdiction, this case concerns illegitimate government

action with the potential to cause irreversible damage to both citizens and the state, including

through the expenditure of unrecoverable taxpayer dollars. See supra, at 5-6 (listing cases); see

also Am. Petroleum Inst. v. S.C. Dep’t of Revenue, 382 S.C. 572, 677 S.E.2d 16 (2009), holding

modified by S.C. Pub. Int. Found. v. Lucas, 416 S.C. 269, 786 S.E.2d 124 (2016); Sloan v. Wilkins,

362 S.C. 430, 608 S.E.2d 579 (2005), abrogated on other grounds by Am. Petroleum Inst. v. S.C.

Dep’t of Revenue, 382 S.C. 572, 677 S.E.2d 16 (2009). The scope of this illegal government action

and its potential for damage are rapidly expanding as SLED’s ALPR surveillance system

proliferates unchecked, as described above. See supra, at 2.

Finally, how the Court decides these issues will provide critical guidance for future state

programs that may rely on a host of other emerging surveillance technologies, such as facial

recognition, stingrays (used to track cell phone contacts and location), spyware, and drones.9 State

agencies need prompt and clear judicial guidance on what authorization is required to deploy these

9
See, e.g., Matthew Feeney, Facial Recognition Technology is Getting Out of Control, CATO INST.,
(Mar. 9, 2020), available at https://www.cato.org/commentary/facial-recognition-technology-
getting-out-control; Adam Bates, Stingray: A New Frontier in Police Surveillance, CATO INST.,
(Jan. 25, 2017), available at https://bit.ly/3WvjNsH.

15
technologies going forward. Litigating those issues in the trial courts would prevent their prompt

resolution and cause prolonged legal uncertainty for law enforcement. At the same time, citizens

need judicial assurance that vast statewide law enforcement programs involving new surveillance

technologies will be subject to legislative oversight.

Only swift and final judicial disposition can mitigate these harms and provide the necessary

guidance. Swift resolution is possible here, as the case presents only legal questions that do not

require further factual development and discovery. The issues are questions of constitutional law

and statutory interpretation. There is no question as to whether SLED’s ALPR program exists. The

only question is whether that program is authorized by law. That issue is well-positioned to be

decided by this Court in its original jurisdiction.

CONCLUSION

For the foregoing reasons, the Court should grant this Petition for Original Jurisdiction and

issue an expedited briefing schedule on the merits of Petitioners’ complaint.

Dated: November 17, 2022

Respectfully submitted,

Barry Friedman* _/s/ James Carpenter__________

Farhang Heydari* James G. Carpenter, (SC Bar No.
Annie Hudson-Price* 1136) The Carpenter Law Firm, P.C.
Paul David Meyer* 819 East North Street
The Policing Project Greenville, SC 29601
At NYU School of Law (864) 235-1269
Washington Square Legal Services, Inc. [email protected]
40 Washington Square South
New York, NY 10012

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(212) 992-6950
[email protected]
[email protected]
[email protected]
[email protected]
* Application for admission
pro hac vice forthcoming

Alesia Flores (SC Bar No. 72857)

Allie Menegakis (SC Bar No. 103820)
Flores Menegakis LLC
2850 Ashley Phosphate Rd, Ste B
North Charleston, SC 29418
(843) 823-7444
[email protected]
[email protected]
Attorneys for Plaintiffs-Petitioners

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