Norfolk, Virginia Residents Sue City Over Its Network Of 172 Flock Cameras

This lawsuit could not be more impeccably timed. Whether or not this timing is more fortuitous than impeccable remains to be seen, but there’s no denying the bang-bang-bang effect on display here, even if it may just be coincidental.

Last week, a Virginia federal court ruled three hits from Flock ALPR cameras wasn’t enough to trigger a Fourth Amendment violation. It reasoned this was not the same sort of post facto long-term tracking addressed by the Supreme Court’s Carpenter decision, which mainly dealt with law enforcement’s obtaining massive amounts of cell site location data from service providers without a warrant.

That decision erected a warrant requirement for obtaining this data from service providers. The limited holding said important things about tech tools lending themselves to pervasive surveillance while evading the guardrails of Fourth Amendment jurisprudence, but had little to say about slightly less pervasive surveillance using other systems that weren’t reliant on cell service providers and their location data.

The end result was a loss for the defendant, who failed to show three hits from Flock ALPR (automatic license plate reader) cameras violated his rights. The court arrived at this conclusion despite noting Flock’s cameras captured far more than just plate/location/time data. The cameras also captured distinguishing features of vehicles passing its camera and allowed law enforcement to search by make/model/distinguishing features, rather than limiting them to plate number searches. (It also noted Flock cameras gather lots of images of people, but Flock affirmed to the court that its software could not be used to perform facial recognition or otherwise track people’s movements outside of their cars. For now, anyway…)

A week later, another city in Virginia is being sued for its network of Flock ALPR cameras. Unlike what was seen in Richmond, Virginia, where a court ruled a few hits from a reverse search of a vehicle’s description didn’t raise constitutional concerns, the flock of Flocks in Norfolk is a bit more concerning. Even the city’s top cop has admitted it’s a panopticon enabled by easy-to-use and even easier to monitor cameras provided by Flock. (h/t FourthAmendment.com)

Norfolk police chief Mark Talbot said last year, “It would be difficult to drive anywhere of any distance without running into a camera.”

But there’s more to it than just a network of ALPR cameras. Most ALPR systems are designed to notify law enforcement when plates on alert lists pass a camera. It’s a passive system that doesn’t require nor allow constant monitoring by law enforcement. The system in use in Norfolk is the opposite. While it can be utilized as a passive system that provides alerts for plate hits, the Norfolk PD has decided to use it as an active monitoring system to track people’s movements. This is from the lawsuit [PDF], filed with the assistance of the Institute for Justice:

There are no meaningful restrictions on City officers’ access to this information. Officers need only watch Flock’s orientation video and create login credentials to get access. After that, the police department requires them to log in and use Flock’s database throughout their entire shift. Although the police department’s policy requires that officers use the information for law enforcement purposes only, no one proactively monitors their use. Every City officer can search the database whenever they want for whatever they want—no need to seek advance approval.

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 photographs and information are then available to any officer in the City to use as they see fit, for the next 30 days. And if City officials download the photos and information during that 30-day window, there are no meaningful restraints on how long they can hold them or how they may be used.

Worse still, Flock maintains a centralized database with over one billion license plate reads every month. 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, any person with access to Flock’s centralized database can access the City’s information, potentially without the City even knowing about it. Ominously, the City’s police chief has said this “creates a nice curtain of technology” for the City and surrounding area.

The Fourth Amendment concerns might be the least of the issues here. This is a massive database of people’s movements being constantly refilled by the city’s 172 cameras, operated by officers who are expected to actively engage with the system, all without any credible or meaningful oversight.

The city and PD tout it as a crime fighting tool. But it’s a system that actively encourages abuse. Since it tracks every vehicle, officers can use it to track the movements of anyone they wish to track, ranging from journalists to protestors to estranged spouses to anyone they might feel like knowing more about for definitely non-law enforcement purposes. This isn’t mere speculation. The lawsuit cites a couple of past abuses of law enforcement databases by police officers. We’ve covered several more of these cases here at Techdirt over the past decade.

The argument here is that warrantless surveillance of people’s movements violates the Fourth Amendment, even if any single plate/vehicle photo is not a violation in and of itself. Whether this argument will generate favorable judicial action depends on whether or not the court decides to view the hundreds of thousands of photos captured by the 172 cameras as a whole, or whether it decides each of these hundreds of thousands is it own individual observation of a vehicle on a public road, which has never been considered a Fourth Amendment violation.

And that’s where Carpenter will come into play. The Supreme Court knew any individual data point meant nothing, especially under the Third Party Doctrine. But when combined to create a long-term record of someone’s movements, officers needed probable cause to obtain this data. In this case, the court will have to decide whether accessing this database requires a warrant.

Whatever it decides, it’s clear the Norfolk PD needs to be doing more to prevent abusive access by officers. The policies it has in place do absolutely nothing to deter misuse. The only requirement appears to be agreeing to some click-wrap that happens to include a short video officers are only obligated to press “play” on. After that, the use and application of this tech appears to be left to each officer’s discretion, which is absolutely the best way to encourage multiple indiscretions. If this lawsuit can’t actually get a warrant requirement installed, perhaps it will, at the very least, force the PD to more closely supervise officers’ use of the Flock-enabled Norfolk Panopticon.