Coming to a Location Near You: A Flock of Surveillance Cameras

Institute for Justice Fights Vehicle Surveillance

In a case that has national implications for law enforcement and civil liberties advocates alike, including in Wisconsin, the public interest law firm Institute for Justice has filed a federal lawsuit representing two Norfolk-area residents who are challenging the constitutionality of the city’s vehicle surveillance system.

The Institute for Justice (IJ) says the system, which it calls massive, allows police to monitor the comings and goings of all drivers in the city, and plaintiffs Lee Schmidt and Crystal Arrington argue that the program violates the Fourth Amendment rights of all citizens.

“I don’t like the government following my every movement and treating me like a criminal suspect, when they have no reason to believe I’ve done anything wrong,” Lee, a recent Navy retiree, said upon filing the lawsuit.

At the heart of the case is a decision by Norfolk police in 2023 to partner with the company Flock Safety to install 172 of the firm’s automatic license plate reading cameras. According to the IJ complaint, with surrounding communities also adopting the technology, Norfolk police chief Mark Talbot said the cameras would establish a “nice curtain of technology” that would make it “difficult to drive anywhere of any distance without running into a camera somewhere.”

That precise summation of the new technology’s capabilities raises red flags for civil liberties’ advocates—with good reason given past government abuses—and it further points to a central question emerging in the debate over government’s ability to monitor the citizenry: Should a government be able to universally surveil the population—with massive camera networks and various official information registries—just because it can?

The question has not been debated adequately, but this case will likely help examine some of the finer threads of the constitutional fabric: Where does the employment of technology to serve public safety overstep into government overreach? Where does the use of technology for public safety breach the boundary of personal liberty?

Indeed, law enforcement often calls the technology a “game changer” and Flock itself refers to it as “a holistic solution to fighting crime,” but civil liberties advocates call it “mass surveillance” scheme offering up too much temptation to abuse Fourth Amendment protections. And, while what may be a junkyard to one might be a garden to another, the implications in this debate are a lot more than aesthetic.

The case is not unimportant in Wisconsin, where law enforcement units and municipalities around the state are increasingly employing the technology. In 2023, a FOX6 investigation found at least 219 Flock cameras in the Milwaukee area, with 20 cities and municipalities using or testing Flock systems, ranging from Green Bay to New Berlin, from Dane County to Rice Lake. This past March, the city of Oconomowoc joined the party, and so are many others.

The Dangers of Warrantless Monitoring

In its arguments, IJ raises the specter of a literal surveillance state.

“Unlike a police officer posted at an intersection, the cameras never blink, they never sleep, and they see and remember everything,” the IJ complaint states. “Every passing car is captured, and its license plate and other features are analyzed using proprietary machine learning programs, like Flock’s ‘Vehicle Fingerprint.’”

All of that surveillance creates a detailed record of where every driver in the city has gone.

“Anyone with access to the database can go back in time and see where a car was on any given day,” IJ states. “And they can track its movements across at least the past 30 days, creating a detailed map of the driver’s movements.”

With advanced search and artificial intelligence functions, law enforcement can output a list of locations a car has been seen, create lists of cars that visited specific locations, and even track cars that are often seen together, the complaint asserts.

In a statement sent to 404 Media countering the lawsuit’s claims, Flock Safety pointed to multiple court decisions upholding the constitutionality of license plate readers.

“Fourth Amendment case law overwhelmingly shows that license plate readers do not constitute a warrantless search because they take photos of cars in public and cannot continuously track the movements of any individual,” the company stated. “Appellate and federal district courts in at least fourteen states have upheld the use of evidence from license plate readers as constitutional without requiring a warrant, as well as the 9th and 11th circuits.”

License plates are issued by the government for the express purpose of identifying vehicles in public places for safety reasons, Flock’s statement asserted.

“Courts have consistently found that there is no reasonable expectation of privacy in a license plate on a vehicle on a public road, and photographing one is not a Fourth Amendment search,” the company concluded.

To that point, in a case just completed on October 11 in the Richmond, Virginia area, a federal judged ruled that Flock cameras in that case did not amount to a Fourth Amendment search because the database contained only three images of a suspect’s vehicle over 30 days and thus did not allow law enforcement to track or monitor “the whole” of the suspect’s physical movements.

Still, IJ argues in its lawsuit that Flock technology is different from other license plate reader systems. While traditional traffic cameras capture an image only when they sense speeding or someone running a red light, IJ argues, Flock’s cameras capture images of every car driving by, which it retains for at least 30 days.

“Artificial intelligence then uses those images to create a ‘Vehicle Fingerprint’ that enables any Flock subscriber to both track where that vehicle has gone and identify what other vehicles it has been seen nearby,” IJ asserts.

In other words, critics argue, it creates a “permeating police surveillance” that can be easily abused, not least because it is not just a “nice curtain of security” but also a government observation deck for the constant monitoring of the population without any probable cause—the very conditions for which the Fourth Amendment was created.

The Constitutional Claim, the Opportunities for Abuse

In the complaint, IJ acknowledges that the use of the license-plate databases is limited to law enforcement purposes, just as traditional license plate checks are, but it also observes that the damage can be much worse than in traditional checks, especially because, as the network spreads, the tracking potential is limitless.

The constitutional argument the plaintiffs present is straightforward. First, the complaint asserts, tracking a person’s public movements over at least 30 days is undoubtedly a search for constitutional purposes.

“The city is gathering information about everyone who drives past any of its 172 cameras to facilitate investigating crimes,” the complaint states. “In doing so, it violates the longstanding societal expectation that people’s movements and associations over an extended period are their business alone. And because the city does all of this without a warrant—instead letting individual officers decide for themselves when and how to access an unprecedented catalogue of every person’s movements throughout Norfolk and beyond—the city’s searches are unreasonable.”

That is exactly the type of a “too permeating police surveillance” the Fourth Amendment was adopted to prevent, the plaintiffs contend. Indeed, the complaint argues, the plaintiffs are ordinary, everyday people who live and work in Norfolk.

“Nearly every day, they drive past the city’s automatic license plate readers as they go to work, to the store, to their kids’ schools, to church, or to meet friends and family,” the complaint states. “Like most people, they try to maintain a reasonable amount of privacy in their lives. And they find it downright creepy that the city’s 172 unblinking eyes follow them as they go about their days, noting where they are and when, and storing their movements in a government database for any officer to see.”

The possibilities for abuse are too many to be acceptable, the lawsuit asserts. The photographs and information are available to any officer to use any way they want for at least 30 days, but there are no prohibitions against downloading them for future use or any long-term restrictions on that use, IJ points out.

“Worse still, Flock maintains a centralized database with over one billion license plate reads every month,” the complaint states. “So, even after a driver leaves the city, officers can potentially keep following them in the more than 5,000 communities where Flock currently has cameras.”

Likewise, IJ contends, any person with access to Flock’s centralized database can access the city’s information, potentially without the city even knowing about it.

“Every city officer can search the database whenever they want for whatever they want—no need to seek advance approval,” the complaint states. “All of this is done without a warrant. No officer ever has to establish probable cause, swear to the facts in a warrant application, and await the approval of a neutral judge. The cameras take photographs and store the information of every driver that passes them—suspect or not.”

The Larger Dangers of a Surveillance State

This lawsuit gives the courts—and the nation—a chance to weigh in on potential dangers of expanded surveillance and the expanded use of registries in modern society, no matter the final judgment on the constitutional claims in this one instance.

Without question, as the plaintiffs concede, the technology enhances law enforcement’s ability to fight crime. Using the data to pinpoint a car’s location and map its movements over any time period for which data exist has been a boon in cracking cases, as law enforcement agencies point out. Then, too, police departments commonly cross check the license database with “hot lists” that include stolen vehicles and those suspected of being used in a crime.

All that is why police call the technology a game-changer. But that same boon can be a bane, the plaintiffs argue.

“A driver can be tracked to church, to a doctor’s office, to a drug-abuse treatment clinic, to a political protest, or anywhere else,” the complaint asserts.

The system also creates a record of every other car that was at those locations at the same time, revealing not just where the person driving the car went but who else was there around the same time, IJ argues in the complaint.

“The data can be used to discern who a driver met or who they traveled with, revealing the driver’s friends, colleagues, and other associations,” the complaint asserts.

And it doesn’t stop there, IJ point out, because some companies offer software that automates the tracking process, allowing an officer to easily compile records with minimal effort.

“With a few mouse clicks, software programs can let police map a driver’s route and can even produce an analysis of vehicles commonly seen in the same vicinity,” the complaint states. “Absent any warrant requirement, how the police use these systems is left to their own discretion. Officers can abuse their access to get information for illegitimate reasons—like tracking protestors or personal acquaintances. And third parties can even gain access.”

And predictably, the complaint asserts, such abuses have actually happened.

“A police chief and an officer (in different departments) in Kansas used data from the same vendor defendants use to stalk their ex-partners,” the complaint states. “U.S. Customs and Border Protection’s vendor was hacked and license plate images of thousands of travelers at border crossings became available on the dark web.”

And: “The U.S. Cybersecurity and Infrastructure Security Agency issued an alert after discovering a ‘low attack complexity’ vulnerability in ALPRs sold by Motorola Solutions, one of the biggest players in the industry.”

The Philosophical Question

As Britain’s Lord Acton famously said in the 19th century, power corrupts, and absolute power corrupts absolutely.

As such, any government that is allowed to employ technology that is capable of universally surveilling its citizens’ movements will end up universally surveilling its citizens’ movements, and sooner or later they will do so for unconstitutional reasons.

The lawsuit cites a few examples, but there are myriad others. Back in 2004, in an open-records case investigated by the newspaper I work for (The Lakeland Times) and which then went to the state Supreme Court, the DNR found that a conservation warden violated work rules by conducting a license check for a non-law enforcement purpose, and our investigation found that such infractions are not rare occurrences, even in Wisconsin.

We’ve had a taste of even more egregious potential. As Bloomberg reported in March 2020, Rhode Island directed officers to “hunt down New Yorkers” entering the state. As the article’s sub-headline reported: “Cars stopped, homes to be checked to enforce quarantines; Officers halt cars on the interstate to start the crackdown.”

Imagine what these authorities could do with the new systems.

To be sure, Flock correctly points to cases where license plate readers were upheld—though in far more primitive form than current readers—but there are also court cases suggesting that at the very least these systems might cross the line, and that conversation needs to be restarted.

In Katz v. U.S. (1967), the court held that it is unconstitutional under the Fourth Amendment to conduct a search and seizure without a warrant anywhere that a person has a reasonable expectation of privacy. It went further in addressing that right in public places, acknowledging that citizens do not necessarily forfeit their right to privacy in any public place.

“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” the court ruled. “But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

The question becomes—and I think the answer is obvious—should an innocent citizen who gives authorities no probable cause of committing a crime expect that his or her travel to a doctor, or to a church, or even—and maybe especially—to a political protest be private and not knowledgeable to the government?

In 1979, in Delaware v Prouse, the court also held that a person in a car does not lose Fourth Amendment protections simply by traveling in a vehicle.

“An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation,” the court held. “Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed.”

The question is, is the new technology unfettered government intrusion? It’s a question that has not been answered.

More recently, and in a case involving similar technology, in Carpenter v U.S, (2018), the court held that police must get a warrant before they can obtain historical information from cell phone providers about the location of mobile phones. That was a narrow decision that did not address security cameras, but the decision made clear that emerging technologies that “give the government near perfect surveillance and allow it to travel back in time to retrace a person’s whereabouts” raise serious constitutional concerns.

Hopefully—and maybe it will ultimately take place in the U.S. Supreme Court—this lawsuit will help the nation resolve these questions and protect constitutional rights. It spotlights not only the growth of the surveillance state but its ability to morph into something far more sinister and dangerous than just a tool to ensure holistic crime fighting.

On the perimeter of this kind of surveillance but also demanding a debate are the dangers of national databases in general, such as registries that would compile the names and locations of every person with firearms. That’s a form of surveillance, too.

Authoritarianism in the Modern Age

Finally, this case is even more interesting because it offers a primer on modern authoritarianism.

In this age of polarization and dramatic rhetoric, the threat to the republic is often portrayed as an army atop the yonder hill, visibly amassed and ready to attack and conquer. In the closing days of this election season, to cite just the most recent example, the left has been raising the specter of Donald Trump being a fascist and akin to Hitler, and they are sternly warning against a brazenly totalitarian administration.

They present no evidence for the claim, made perhaps out of desperation, but they recklessly have raised the nation’s temperature with dramatic depictions of Nazism, such as cutting in clips of a 1939 Nazi rally at Madison Square Garden with those of Donald Trump’s.

And yet, conservatives and many civil libertarians who don’t consider themselves conservative point to a much more evidential and growing authoritarian threat from the Democratic administration that is far more subversive and dangerous. Indeed, the real authoritarian movement these days is a surreptitious creature, not an invading army with blaring horns on the hill, but so incremental in nature that it often escapes public notice.

In fact, a government authoritarianism has been incubating deep in the bowels of the administrative state for literally generations, by federalizing education and ideological curricula, by smothering daily life and commerce in ever more regulations and rules, and, not least, by ever increasing its surveillance of the American people.

Little by little, democracy dies the death of a thousand cuts. Little by little, children are indoctrinated, the government increasingly tells people what they can and cannot do, even trying (but failing) to define how much dust a farmer can have on the farm, and they—and this is not discussed often enough—enforce it by an increasing surveillance that monitors the whole of the population, especially though its movements.

George Carlin once warned that fascism would come to the United States with a smiley face. This year, after becoming more brazen during the pandemic, Democrats did try to hold on to power by running a self-described “campaign of joy” before launching a fear campaign based on lies and projection.

Make no mistake, though, authoritarianism is not screaming from the rafters in Madison Square Garden but it is and has been pulsing through all the arteries of our life. It follows us to work, to school, to church, and to the grocery story. As with a stalker, most days we don’t even realize it’s there.

Like a stalker, it needs to be ordered to stop before the crime is committed.