Ongoing and Future Litigation Over Countrywide Systems of Surveillance
The Supreme Court is yet to weigh in on the constitutionality of automatic license plate readers (“ALPR”), but arguably the most famous and pervasive company in the industry, Flock, is coming under increasing scrutiny from both the public and legal challenges. The ACLU’s “Get The Flock Out” campaign frames Flock as one vendor among several, Axon, Motorola’s Vigilant Solutions, Genetec, Rekor, and others, building what it calls a “nationwide mass surveillance system,” largely without warrants. The statistics it cites are alarming, alleging that there are already 80,000-100,000 Flock cameras currently installed across the country, but fewer than 1% of cars scanned by the cameras have been connected to any crime, and 1-in-10 scanned license plates have their issuing state misread. The ACLU’s point isn’t just about error rates, it’s about what continuous, networked plate-scanning reveals over time. As the campaign puts it, cameras that constantly track where you drive can reveal “which doctors you visit, what house of faith you worship at, who you visit or drive around with — even which political meetings and protests you attend.” The abuses the ACLU catalogues on its website and the lawsuits it has filed reveal that these are not unrelated incidental data collection but can be used to built a profile of anyone’s life, built car trip by car trip.
While Flock and similar camera systems are still legal, the US Supreme Court’s recent decision in Chatrie v. United States may be a signal that these systems are ripe for challenges on Fourth Amendment grounds. We previously covered that decision, but to briefly summarize, the Court held that in applying the reasonable-expectation-of-privacy test, it reasoned that a geofence warrant seeking someone’s location history is a Fourth Amendment search, meaning it requires a valid warrant grounded in probable cause and particularity, not just a subpoena-style request to a tech company. Under that same logic, it could be argued that a network of 80,000-plus cameras, logging every plate, every crossing, and making that history searchable by any agency with a Flock contract, is a lot like the aggregated, revealing dataset the Court was unwilling to protect in Chatrie without a warrant. That holding cuts directly against the theory Flock and other ALPR vendors have relied on for years in that because you’re driving on a public road, in plain view, you have no reasonable expectation of privacy in your movements, so none of what the companies do count as a “search” requiring a warrant. Whether the Court will extend the Chatrie logic to ALPRs is to be determined, but many criminal defendants and privacy advocates should watch any developments closely, particularly for defendants where law enforcement used Flock or similar systems in their investigations.
Controversy and Pushback by the Public
Flock and other surveillance companies do not confine themselves to just ALPRs but run extensive surveillance systems in nearly every facet of public life. In Dunwoody, Georgia, public records requests filed by a resident revealed that Flock Safety employees had logged into cameras inside the Marcus Jewish Community Center and watched children in a gymnastics room and by a pool, not for security purposes, but to demo the company’s surveillance capabilities to other prospective police clients. When this became public, Flock CEO Garrett Langley apologized directly to the community center, calling it “poor judgment,” and the company promised what it called “radical transparency,” along with a pledge to stop using Dunwoody’s footage in future sales pitches. Afterwards, the city council of Dunwoody renewed its contract with Flock, but only after a hotly contested council meeting in which many residents voiced their concerns about stalking, ICE data sharing, and surveillance of protests. But this misuse was not the only case that is grabbing headlines and leading to a public backlash. In the weeks after the city council vote, other departments began auditing their own employee’s Flock use, which turned up more abuses of the system and led to the arrests of several officers accused of misusing plate reader data, adding to an earlier case in which five officers were fired for similar abuses of the system. Residents have even begun to chop down the camera poles in some instances where they can be located, and the LAPD recently let its contract expire, with the department Chief Information Officer Dean Gialamas citing, “serious concerns around civil liberties and civil rights issues,” particularly who owns the data and how it gets shared, though other law enforcement agencies have actually expanded their network of cameras in recent weeks as well.
There is even a website dedicated to fighting back against the proliferation of the cameras, DeFlock, an open-source, crowdsourced map started by Alabama software engineer Will Freeman after he noticed how many license plate readers he was passing on a routine drive. The website lets anyone report a camera’s location, the direction it faces, and which agency or vendor runs it. The site describes its own mission as being to “shine a light on the widespread use of ALPR technology, raise awareness about the threats it poses to personal privacy and civil liberties, and empower the public to take action,” because ALPRs are, “increasingly being deployed by law enforcement and private companies without the public’s full understanding or consent.” Whatever gets decided in the courts, the public argument over whether this technology should even exist or be implemented at this scale is not going away anytime soon.
