Federal Court Allows Lawsuit Over Network Of 172 Flock ALPR Cameras To Move Forward
Late last fall, a number of Norfolk, Virginia residents — with the assistance of the Institute for Justice (IJ) — sued the city for blanketing Norfolk with nearly 200 automatic license plate readers (ALPRs) provided by Flock Safety.
Flock Safety made its first inroads with the private market, selling plate readers to gated communities and HOAs so busybodies could keep track of everyone driving in and out of their cul-de-sacs. Having captured that market, Flock moved on, targeting US law enforcement agencies with the promise of cheap ALPRs that could be tied into existing ALPR cameras deployed by private citizens.
It’s pretty much the Ring playbook — aggressive market growth that gives cops cheap buy-in so long as they sign long-term contracts to access images and footage. And it’s the same scheme: the implication that using consumer-oriented products will give cops instant access to a further network of privately-owned cameras.
The Flock that became a swarm scored a small win in court before this lawsuit was filed. A state judge ruled three hits from a private company’s plate reader wasn’t quite enough to trigger a Fourth Amendment violation.
The IJ and its clients disagree. The lawsuit noted the city was now infested with cameras, something the police chief himself said “creates a nice curtain of technology.” “Curtain” is pretty much a blanket when it comes to fabric-based analogies. Police chief Mark Talbot also said “It would be difficult to drive anywhere of any distance without running into a camera.” That certainly sounds like a dragnet.
On top of that, records obtained from the Norfolk PD showed there was no direct or indirect oversight of officers’ access to ALPR data, which not only included plate/location data but also descriptive information about vehicles that investigators could use as search terms, rather than just the plate number itself.
And that’s how the city found itself getting sued by residents represented by the Institute for Justice. Less than five months after filing this suit, a federal judge has ruled this case can move forward.
As the decision [PDF] points out, there’s no denying this carpeting (fabric again!) of the city with cameras creates an inescapable network of government surveillance. And that sort of thing has been addressed by the Supreme Court, as well as courts at the appellate level.
Controlling precedent has deemed certain law enforcement surveillance methods as tantamount to a drag-net, finding that these technologies violate individuals’ subjective and reasonable objective expectations of privacy and therefore constitute a Fourth Amendment search. For example, the Supreme Court held that gathering all of an individual’s cell-site location information little of seven days was a search, for it over a period of as revealed the whole of an individual’s physical movements during that period. Carpenter, 585 U.S. at 311. Similarly, the Fourth Circuit held that aerial surveillance by plane. which captured second by second images of broad swaths of the City of Baltimore for close to 12 hours a day. sufficiently tracked the whole of one’s movements and was therefore a search.
That makes it clear the government can’t simply claim public movements have no expectation of privacy. They likely don’t in the singular, but the aggregate is what’s problematic in terms of constitutionality.
This court says the long-term tracking of people’s movements (via plate/location data from a network of cameras that are, as the police chief stated, inescapable) is the sort of thing the Carpenter decision addressed, even if it dealt with a different form of long-term tracking.
Relying on Carpenter, when this Court accepts Plaintiffs’ well-pled version of the facts and draws all reasonable inferences in their favor, as is required at this stage of the proceedings, the Court concludes that it is plausible that Plaintiffs subjectively believe they have a reasonable expectation of privacy that is being violated because the Flock camera system is creating a drag-net system of surveillance that effectively tracks the whole of Plaintiffs’ physical movements.
Given this, it’s unlikely the government can successfully argue that if Norfolk residents don’t want to be tracked by ALPRs, they can simply choose to walk or use public transportation. That argument hasn’t worked in multiple Supreme Court decisions where the government has claimed that if people don’t want their phone location data accessed without a warrant by investigators, they should just leave their phones at home. In this day and age, going without a phone is about as impractical as going without a car. These are essentials of everyday life, even in cities with marvelous public transportation systems. And I doubt Norfolk places highly on the list of “Best Public Transportation Systems.”
As one plaintiff notes, he can’t even leave his own neighborhood without being photographed by up to four Flock ALPR cameras. That’s ridiculous. And, as this court has ruled at this point, it’s also possibly unconstitutional.
When construed in Plaintiff’s favor, as required at this stage of the case. the complaint alleges facts notably similar to those in Carpenter that the Supreme Court found to clearly violate society’s expectation of privacy: law enforcement secretly monitoring and cataloguing the whole of tens of thousands of individual’s movements over an extended period. In short, the Court finds that considering existing precedent, the well-pled facts plausibly allege a violation of an objectively reasonable expectation of privacy.
Now, of course, this doesn’t mean the plaintiffs have won. But the important thing at this point in the litigation is that the government hasn’t won. The suit has not been dismissed. The fight continues. And, given the tone of this decision, it appears the government will need to bring some new arguments to its defense of its ALPR dragnet because the usual stuff is foreclosed by precedent. With any luck, the Institute for Justice and its clients will, at the very least, generate a warrant requirement for access to ALPR databases — something that would be the first of its kind in this nation.