Dear Doc:
I know this question is not about intellectual property, but I hear that you’ve been lecturing about privacy recently, and I wonder if you’ve heard about Flock license plate readers and a lawsuit claiming that they violate the Fourth Amendment.
Signed,
Creeped Out
Dear Creeped:
Yup! The “Doc” has given lectures at many locations over the years about the legal right to privacy, and how it has all but vanished since the Internet came online. He’s written about warrantless search by various government “three letter” agencies (NSA, CIA, etc.), and he’s seen how modern surveillance systems operate using both government and private cameras that, while they are used to keep us safe from threats like bombs and terrorist attacks, also erode our privacy in how we go about our everyday activities.
In the 1967 case of Katz v. United States, the Supreme Court ruled that one has a right against search by the government any time one has a “reasonable expectation of privacy, objectively recognized.” The problem with this rule is that as technology advances, what may be reasonable and objectively recognized will shrink until it no longer exists. The Court tried to backstop privacy in the case of Kyllo v. United States when it ruled against the use of a surveillance technology that could look through the walls of a house from the street out front. There, the Court based its ruling on the fact that the technology employed by the police was not in “general public use.” The Doc thinks that here the slope may be less steep, but no less slippery.
The Flock license plate reader that you mentioned is a network of solar-powered cameras equipped with artificial intelligence capabilities that allow police to track every vehicle in a wide area, not just by license number, but by visual characteristics such as make, model, year, and distinctive features like bumper stickers, damage, etc. The system compiles a database that can recreate vehicle movements, coordinate them with other vehicles and events, and even predict movements in advance. The city of Norfolk, Virginia, operates a network of 172 such cameras!
There are 5,000 other communities that also have networks of Flock cameras, and all of the information from Norfolk and these other areas is contained in one gigantic database, allowing a vehicle to be tracked from place to place with ease.
A civil liberties organization has now filed a suit against Norfolk in federal court, claiming that this Big Brotherism is a violation of the Fourth Amendment rights of two citizens who are serving as the plaintiffs because they have a reasonable expectation that their every movement in their vehicles will not be tracked at all times by the Norfolk Police Department. Where will the courts come down? The Doc says it’s anybody’s guess, since the standards set by the Supreme Court are a moving target. With thousands of Flock cameras already in use, it would seem that the cat is a long way out of the bag under the Kyllo test (general public use) but saying that citizens need to bring their lawsuits sooner in order to preserve their Constitutional rights seems like a very bad idea. For a much more in-depth look at this issue, look here.
Have an important legal question? Talk to the attorneys at LW&H. They’re a very knowledgeable bunch!
Until next month,
The “Doc”
— Lawrence A. Husick, Esq.