To its credit, the article covers all the reasons why the Chatrie decision won’t be determinative for this case.
But the headline and narrative paint a way too optimistic (if you’re anti-Flock) picture of Chatrie’s impact.
In particular the search identified by Chatrie (Google’s database of expected-private location records, including movement in the home and other private spaces) has almost no analog in third-party-owned recordings of public movement.
But Chatrie found that the geofence was unconstitutional because of the wide dragnet which included people not suspected of crimes, not because those people were in private spaces:
> The Court held that police conducted a Fourth Amendment search when they obtained Chatrie's location data, because, as the opinion put it, "an individual has a reasonable expectation of privacy in his cell-phone location information."
The analogue with Flock is pretty clear then:
> Just as important as the holding is the reasoning: the Court rejected the government's fallback argument that the search was fine because it only pulled a narrow, time-limited slice of a much larger dataset. Once the Fourth Amendment applies, the majority reasoned, it doesn't matter how small a bite investigators took out of an all-encompassing database.
Flock produces a record of a car's travel history. Automobiles are highly regulated and driving is a privilege. There is no _right_ to drive a vehicle from point A to point B, in secret or not.
> Automobiles are highly regulated and driving is a privilege. There is no _right_ to drive a vehicle from point A to point B, in secret or not.
If we accept your premise that the government can spy on you simply because an activity is regulated, then the Fourth Amendment is effectively dead. Under that logic, the state could mandate interior cameras in every heavily regulated business, or search the backpack of every passenger using public transit without a warrant.
You have a reasonable expectation of privacy for the contents of your trunk, your backpack, and your travel history. The police cannot search your trunk without a warrant just because you are driving on public roads. They should not be able to search your travel history either.
> The police cannot search your trunk without a warrant just because you are driving on public roads. They should not be able to search your travel history either.
Can the police take pictures of every car they see and use that to determine your travel history? If the police don't have the expertise to maintain such a network can they pay a third party to do so?
> Can the police take pictures of every car they see and use that to determine your travel history?
You conflate the generally unremarkable act of taking a picture of a single car in public with the indiscriminate collection of photos of all vehicles. The former is a constitutional, isolated observation. The latter is a search, since in toto it reveals personal information.
> If the police don't have the expertise to maintain such a network can they pay a third party to do so?
May the police pay a third party to execute warrantless searches?
In the 1760s there was something called a writ of assistance, which allowed British officers to search any location for smuggled goods without specific suspicion.
The Framers of the Constitution drafted the Fourth Amendment in direct response to these abusive general warrants, protecting against the exact kind of arbitrary power that placed "the liberty of every man in the hands of every petty officer." (John Adams)
Moreso, Adams maintains:
Writs in their nature are temporary things. When the purposes for which they are issued are answered, they exist no more; but these live forever; no one can be called to account...
But these prove no more than what I before observed, that special writs may be granted on oath and probable suspicion. The act of 7 and 8 William III that the officers of the plantations shall have the same powers, etc., is confined to this sense; that an officer should show probable ground; should take his oath of it; should do this before a magistrate; and that such magistrate, if he think proper, should issue a special warrant to a constable to search the places.
As Justice Sotomayor noted in United States v. Jones, logging a vehicle's public movements "reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." An action revealing all this is ipso facto a search; and Flock performs this search in the very absence of a specific warrant that Adams so vehemently opposed.
We probably all agree that a cellphone is closely associated with you and acts as a surrogate brain, so it gets treated as "you", at least as much as the _inside_ of your house or car.
You the right of free travel (with or without your phone). Automobiles are different. You can't take it everywhere; you can't park it everywhere; you can't move it about in secret (plates MUST be displayed, always).
You have an expectation of privacy for the inside of your car. But not the outside of your car. And even the inside... if it's visible from the windows, it's public.
The reason cell tower data is excluded from Third Party Doctrine has nothing to do with the contents of a cell phone. Cell tower data doesn't have any relationship whatsoever to the contents of the phone.
The relevant factors are:
1. It creates a near-complete picture of a person's whereabouts
2. It is effectively not optional to have and carry a cell phone today
You do in fact have a reasonable expectation that the government can't reconstruct a near-perfect timeline of your daily life without a warrant... obviously.
> A cellphone is effectively you in the eyes of the law.
No. I just laid out the reasons why cell tower data is different. It has nothing to do with whether a cellphone "is effectively you," which obviously it's not.
All government regulation still has to be balanced against whether it intrudes or not on the rights of the People. The government can regulate vehicles, including ensuring drivers have met whatever requirements a license might require — nobody is arguing against that. But Flock cameras do not help advance any reasonable state interest in that area; their sole purpose AFAICT is for law enforcement, and in a way that intrudes on any basic expectations of privacy.
Just like cell towers record a cell phone's travel history. Cell phones are highly regulated and having one is a privilege. There is no _right_ to carry a cell phone from point A to point B, in secret or not.
This is factually incorrect. You do, in fact, have a legal right to own a cellphone. Cellphone ownership is not licensed and law enforcement cannot stop you from buying a cellphone or carrying it from point A to point B.
Cars are different. You must be licensed and cars must be registered with the state. Cars must display tags for the purpose of tracking. They must be inspected periodically. When driving a car on public roads, you are subject to implied consent; for example, taking a blood alcohol test on demand.
As they say, "driving is a privilege, not a right". Cars are different.
Ask yourself: If a US state passed a law requiring geo trackers in all automobiles, do you think it would be unconstitutional? What about drones, airplanes, boats?
Justifying some control does not justify all control. Voting is a "privilege" too [0] but does that mean any state government should be recording an exact log of your ballot-choices? Surely not.
[0] It should be a far stronger right than what it is right now, but that's separate big debate.
US v Jones ruled that installing a GPS car tracker requires a warrant because it trespasses on private property (the vehicle).
On the other hand, law enforcement can follow your car with a drone, helicopter, or other vehicle without a warrant. Are cameras more like a helicopter or more like a GPS tracker? The Supreme Court has not weighed in yet.
US v Jones ruled that installing a GPS car tracker requires a warrant at least when it involves trespass on private property. That case explicitly did not answer whether it would also require a warrant if no trespass was required, and deferred to Katz v United States analysis. That analysis was used shortly after in Carpenter v United States to answer that the government cannot use third party data that people do not voluntarily give up (like cell tower data) given the completeness of the record.
Fundamentally the issue presented is: "At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”"
Obviously "input name, find location at all hours of any day over the past X years" is not the degree of privacy against government that existed when the 4th Amendment was adopted.
Not sure I agree. The only difference I see is the idea that there's no expectation of privacy while driving on public roads. That's potentially a huge difference, certainly, but I don't think it makes the negative outcome here quite as likely as you think.
Otherwise, it's the same: Google's database is a third-party-owned record of people's movements in public, and Flock's database is a third-party-owned record of people's movement in public.
The ruling in Chatrie had nothing to do with an expectation of privacy, or lack thereof. It was about the dragnet nature of the surveillance. And in that respect, I don't see any meaningful difference between Flock's and Google's systems.
>The only difference I see is the idea that there's no expectation of privacy while driving on public roads.
Isn't there some level of expectation if for your whole life these mass networks didn't exist and you could go to the grocery store without being locked in database prison?
The very first holding of the majority opinion by Kagan:
Held: Police officers conducted a Fourth Amendment search when they
acquired Chatrie’s location data from Google because an individual has a reasonable expectation of privacy in his cell-phone location information.
Note the possessive “his”. Crucial to the case, this was held to be the individual’s data, not the third-party’s.
Why would the expectation of privacy be different depending on which spectrum of light the information was captured in (visible vs radio)?
In both scenarios, the data is held by a private third party and a person generates this data pretty much by-default.
This is the relevant bit:
In Carpenter, this Court held that accessing cell-site location
information (CSLI) constitutes a Fourth Amendment search because
“individuals have a reasonable expectation of privacy in the whole of their physical movements,” 585 U. S., at 310. The Court reasoned that CSLI provides a “detailed” and “encyclopedic” portrait of a person’s whereabouts, id., at 309, and, with that, “an intimate window into a person’s life,” id., at 311. Because people “compulsively carry” their cell phones “all the time,” the Court explained, a cell phone “tracks nearly exactly the movements of its owner,” and thus “faithfully follows” him not only through “public thoroughfares [but] into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”
This question seems preposterous on its face. If you walk around in public wearing a t-shirt with text on it, there's a reasonable expectation that people will read it. Specifically because it reflects light.
This is implying the contents of the data are relevant. They're not. What's relevant is only that the government ends up with a very complete picture of a person's whereabouts without a warrant. That is what is disallowed.
Above was a quote from Carpenter, and the Court seems to have called out that the completeness of the record meant it recorded them, 'not only in public thoroughfares', but also private homes and doctor's office and so forth.
It does seem like that's an element, then -- this is not to say that it's sufficient for anything, since obviously a sufficiently good record of where one goes on public thoroughfares would fail the same test ('reliably reveals that so-and-so went to visit a specialist doctor, divorce attorney, and brothel all on the same day')
Which, I would say, does seem a lot less black-and-white than the cell phone example, and anyone who thinks it's all settled now might be in for a surprise.
I'm going to predict right now that this will boil down to "automobiles are not individuals" and automobiles do not get 4th amendment protections.
Automobiles are not cellphones, and the state is free to regulate automobiles. It could mandate tracking devices in all cars, if there was political will.
Sure, well, multiple Courts have ruled several times in different ways against warrantless mass surveillance, so unless you’re planning to stack the Court, my money is on them remaining consistent here.
"I'm going to predict right now that this will boil down to "automobiles are not individuals""
A vehicle is literally considered an extension of your body, and this has been held up many times, starting with Carroll in 1929.
More recently, the 9th circuit put forth a ruling vacating a man's conviction because a cop merely touched the vehicle, thus triggering a warrantless search complaint.
There's a lot of case law that goes against what you're thinking.
There's nothing special about any particular technology at all. The question is whether people have an option to generate the data for a third party (Google, Flock, or cell tower operators) and then the sensitivity of that resulting data.
Carpenter is pretty simple: If you by virtue of existing in the modern world produce a bunch of super sensitive data that third parties now have, then those third parties aren't allowed to just give the government that data.
Is Flock really 3rd party? Yes, they're a private entity, but they largely owe their existence to government contracts. They maintain their database on behalf of various governments. Their primary sales pitch is to law enforcement. It feels like something completely different than Alphabet's or Meta's databases of person/user data.
I do agree that Flock is also not the same as the database of cell phone location data that Verizon or Apple or whoever else might maintain.
It's somewhere in the middle, IMO. At least to my non-lawyer brain.
For states where law enforcement cannot do such things directly, they can still contract with a private provider, either as an RFP, or (as in some states) "you can't RFP this butttt if some private provider just so happened to provide it, you can use it".
Yes, while I'm not a fan of fully networked, recorded, ubiquitous license plate tracking, it is quite different than the cell phone.
License plate number is a registered identifier mandated to be fully plainly visible, with that identifier tied to a registered individual; compared to cell phone which has identifiers, sure, but they're not registered to an individual necessarily, and not mandated to be plainly visible, rather only "visible" as a means of service provision.
they have little respect for precedent which they agree is wrong, which is a far better standard than letting terrible decisions stand because tradition or because popular.
I really hope this doesn’t turn into yet another case of judges looking at irrelevant facts when making decisions.
The fourth amendment does not say “private conversations,” so when police started tapping phones, the courts focused on whether the phone tap physically intruded on somebody’s house, papers, or effects. Police apparently could tap phone conversations by watching reflections on a nearby window, and the fourth amendment didn’t apply because there was no physical intrusion. The “reasonable expectation of privacy” test come from Katz v. US ( https://supreme.justia.com/cases/federal/us/389/347/ ) where the Supreme Court realized that whether there was a physical intrusion was irrelevant.
The argument I struggle to get around and would love to hear a counter-argument to: Let's say a local police department hired 175 police officers, each being told "Go stand on this particular intersection with a pad of paper and write down every license plate you see". This would be a stupid use of resources, but is not outside the realm of something a well-funded police department could do. Every night they take their reports back to HQ, and file them away.
This is a modestly different situation than one concerning warrantless tracking of phone locations, if for no other reason than my phone oftentimes in my pocket. It is not always visible to onlooking bystanders. And even if it isn't, externally there is no reliably way to differentiate one iPhone from another. In comparison: license plates, when in public, are always visible, and very easy to discern from one-another (different state-unique numbers); so in my mind the expectation of privacy is far lower.
I abhor what Flock does, but I'm not sure I see a constitutional argument for why what they do is unconstitutional.
> but is not outside the realm of something a well-funded police department could do
One officer would absolutely not be able to record on that piece of paper every single license plate that passed through a busy intersection. Not even close.
The number of officers that _would_ be required to do so would absolutely be "outside the realm of possibility" for even a well-funded police department.
That's why flock is different. It's a level of scale that was previously—despite your assertions—impossible.
> In comparison: license plates, when in public, are always visible, and very easy to discern from one-another (different state-unique numbers); so in my mind the expectation of privacy is far lower.
According to Carpenter:
A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, 'what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.'
Being present in plain view isn't equivalent to a total surrender of privacy.
I would say the purposeless capture of information is the correct counter argument here.
Specifically, even if a county hired all those officers and did what you suggest if there is no purpose other than recording all this information. I believe it would be a constitutional violation. A person has the right to reasonable privacy outside of their home. License plates can and should be recorded when there is a relevant purpose to it. Such as toll collection, or a scoped traffic watch done by a police officer or a traffic camera. The dragnet collection of data for "maybe its useful" or "we don't know when it will be useful, but it might" has generally been struck down when brought to the supreme court.
For Flock's case, they don't operate as far as I know as ticket issuing traffic cameras which have a much tighter level of control of how they operate. IE:
Traffic cameras have clear signs near them notifying the drivers of their usage, in some states the issuing of the citation cannot be considered criminal (Civil issuance) and must not capture faces of drivers.
“This Court has to date not deviated from the understanding that mere visual observation does not constitute a search. See Kyllo [v US]. ... We accordingly held in [US v] Knotts that ‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ ... Thus, even assuming that the concurrence is correct to say that ‘[t]raditional surveillance’ of Jones for a 4-week period ‘would have required a large team of agents, multiple vehicles, and perhaps aerial assistance,’ ... our cases suggest that such visual observation is constitutionally permissible. It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.”
The fourth amendment is supposed to address invasive and inconvenient general warrants and search warrants. And that’s “inconvenient” from the point of view of the person being investigated. I don’t understand the view that all’s fair as long as the police do a certain amount of busywork, but that does seem to be popular even among some judges.
Scale obviously does not make this more okay; watching many intersections or cell towers is obviously less reasonable than a single intersection or tower.
> In comparison: license plates, when in public, are always visible, and very easy to discern from one-another (different state-unique numbers); so in my mind the expectation of privacy is far lower.
Legally, overhearing a conversation is not different. If you are loudly talking about your drug deals in public in front of an officer, they can use that as evidence. A police department could hire officers to stand everywhere in public and listen to every conversation nearby.
Or, more specifically, they could stand conspicuously close to every payphone and listen. The phones are in public; the officers don't need to be uniformed. Practically speaking this is not at all different from wiretapping. That's what the police did in Katz- wiretap a public payphone.
Flock cameras are not in any meaningful sense different from having officers follow around everyone and record everywhere they go. Its irrelevant whether one officer is following one person or if many people are following them, each within their own small area. That would absolutely not be legal without a warrant. The only difference is a private company is doing it and selling it to the police, something that should clearly not be legal.
It is self-evident that a very narrow examination of a very narrow data set is different than the 24/7 unlimited surveillance of everything. The law should support this basic proposition no matter where they decide the dividing line is. Flock is on the wrong side of an open air prison. I hope they lose.
It's very telling that Flock has only just hired a CISO recently. Garrett doesn't care much for anything that might hint at compliance for data sharing.
Here's a reminder that a Montana-LLC registered car is a legitimate privacy-preserving use case and not the tax-evasion that Straw Manners and Ad Hominem attackers make appear to be.
You can still pay your use tax and be a good citizen, and in fact, its probably a better demonstration of your duties as a citizen to protect the right to privacy and say to your local governments that have a history of abusing and selling vehicle registration data to 3rd parties that you do not tolerate that.
Happy to share more, the sites for Montana registration can be shady but the dirt legal one is great.
In California, at least, if you are a resident of the state, you are legally required to register cars garaged in California with the California DMV. (It's actually a little ambiguous in an annoying way; even if you have a car that's garaged out of state, simply bringing it to CA for a weekend and driving it around can potentially trigger the CA registration requirement, again, assuming you are a CA resident.)
I'd be surprised if most other states don't have similar vehicle laws.
I haven't spent much time personally in Cali, but the places I have had to rent a car from I've never had a rental car plated in the same state I'm driving/renting it from
the rental car is obviously already going to be legal in the state (if not cali plated, then registration is probably via fleet registration or international registration plan (IRP), etc).
under no circumstance are you (the customer) going to be required to (or even able to) register the car you are renting.
i would not take car registration advice from a person asking about registering someone else's car at the dmv.
Interestingly I was watching a body cam where an off duty cop road raged punched a driver.
During the investigation the investigating officer had become worried that the assailant would use police resources to further track and harass the victim.
Luckily the guy was driving a company vehicle that did not track to his address.
>not the tax-evasion that Straw Manners and Ad Hominem attackers make appear to be.
Depends on the state, in my former state, Virginia, it is tax evasion. This is not unique to Virginia BTW, Georgia has similar laws. By law in VA, all cars that are garaged in state for longer than 90 days must pay the car tax. Only reason Montana LLC registered cars get away from it is most counties find out who must pay the tax from Virginia DMV so these cars are missed.
> Here's a reminder that a Montana-LLC registered car is a legitimate privacy-preserving use case and not the tax-evasion that Straw Manners and Ad Hominem attackers make appear to be.
I mean, it’s both, right? You’re definitely getting a tax advantage compared to a lot of areas of the country. And how is insurance going to work?
I live in North Dakota and the cost of maintaining a Montana LLC would be more than my yearly registration fee. Something I started doing is getting new plates every year so historical data of my movement based on plate number only goes back a year.
Tax advantages are not tax evasion. Otherwise, why bother with doing anything that is tax advantaged if when anyone calls it tax evasion or accuses someone of a crime the accused just give up and takes guilt (assumption of guilt over innocence) paying whatever is asked?
Insurance is a bit tricky though I've heard it's simple. Most companies don't ask or inquire about where the cars registered, and neither do repair shops or parts of the claim process inquire into this. If you're uncomfortable with this, you can DYOR and check what happened for claims if a driver who's personally insured is driving a vehicle registered under an LLC/company. I think it isn't true that just because a vehicle is registered by a company, it cannot be used for personal purposes or that insurance companies would make claims more difficult (though check yourself and I'm happy to know what you find)
Many states have laws that require a vehicle to be registered in-state if they have established residence, or similar.
Even if you are able to register a vehicle legally in another state, that does not necessarily exempt you from obligations in your own state... even if it would for non-residents passing through.
Those charged by the AG in CA were charged with tax fraud. It was apparent that they were actively avoiding taxes based on recorded messages and fraudulent documents.
At least in my state, as a former emergency services worker, our EVIP (emergency vehicle incident prevention) course (which serves as a "substitute" for requiring a CDL to drive an emergency vehicle) absolutely tells you that driver liability can and will flow through to your personally, even when driving a work vehicle for work purposes. (Because that also comes with a presumption of liability for any incident that happens in "emergency mode" departments, agencies will generally also hold insurance specifically for that flow through that says "while the law says you can do anything, with due regard, in emergency mode, as long as you stay in our more restrictive SOPs, our insurer will also cover your personal liability".)
To its credit, the article covers all the reasons why the Chatrie decision won’t be determinative for this case.
But the headline and narrative paint a way too optimistic (if you’re anti-Flock) picture of Chatrie’s impact.
In particular the search identified by Chatrie (Google’s database of expected-private location records, including movement in the home and other private spaces) has almost no analog in third-party-owned recordings of public movement.
But Chatrie found that the geofence was unconstitutional because of the wide dragnet which included people not suspected of crimes, not because those people were in private spaces:
> The Court held that police conducted a Fourth Amendment search when they obtained Chatrie's location data, because, as the opinion put it, "an individual has a reasonable expectation of privacy in his cell-phone location information."
The analogue with Flock is pretty clear then:
> Just as important as the holding is the reasoning: the Court rejected the government's fallback argument that the search was fine because it only pulled a narrow, time-limited slice of a much larger dataset. Once the Fourth Amendment applies, the majority reasoned, it doesn't matter how small a bite investigators took out of an all-encompassing database.
As I understand the ruling, the Court decided these location records were akin to a diary or a personal photograph.
That’s what triggered the essential element of an expectation of privacy, from which the fact of a search was established.
Totally absent in this case, as far as I can tell.
No, they argued these records are akin to a record of the person's travel history.
> As Google puts it, and no one seriously disputes, Location History serves as a “diary” or map “of a person’s travels.”
"Diary" is a red herring here. They're referring to a location log, just like what Flock produces.
Flock produces a record of a car's travel history. Automobiles are highly regulated and driving is a privilege. There is no _right_ to drive a vehicle from point A to point B, in secret or not.
> Automobiles are highly regulated and driving is a privilege. There is no _right_ to drive a vehicle from point A to point B, in secret or not.
If we accept your premise that the government can spy on you simply because an activity is regulated, then the Fourth Amendment is effectively dead. Under that logic, the state could mandate interior cameras in every heavily regulated business, or search the backpack of every passenger using public transit without a warrant.
You have a reasonable expectation of privacy for the contents of your trunk, your backpack, and your travel history. The police cannot search your trunk without a warrant just because you are driving on public roads. They should not be able to search your travel history either.
> The police cannot search your trunk without a warrant just because you are driving on public roads. They should not be able to search your travel history either.
Can the police take pictures of every car they see and use that to determine your travel history? If the police don't have the expertise to maintain such a network can they pay a third party to do so?
> Can the police take pictures of every car they see and use that to determine your travel history?
You conflate the generally unremarkable act of taking a picture of a single car in public with the indiscriminate collection of photos of all vehicles. The former is a constitutional, isolated observation. The latter is a search, since in toto it reveals personal information.
> If the police don't have the expertise to maintain such a network can they pay a third party to do so?
May the police pay a third party to execute warrantless searches?
In the 1760s there was something called a writ of assistance, which allowed British officers to search any location for smuggled goods without specific suspicion.
The Framers of the Constitution drafted the Fourth Amendment in direct response to these abusive general warrants, protecting against the exact kind of arbitrary power that placed "the liberty of every man in the hands of every petty officer." (John Adams)
Moreso, Adams maintains:
As Justice Sotomayor noted in United States v. Jones, logging a vehicle's public movements "reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." An action revealing all this is ipso facto a search; and Flock performs this search in the very absence of a specific warrant that Adams so vehemently opposed.We probably all agree that a cellphone is closely associated with you and acts as a surrogate brain, so it gets treated as "you", at least as much as the _inside_ of your house or car.
You the right of free travel (with or without your phone). Automobiles are different. You can't take it everywhere; you can't park it everywhere; you can't move it about in secret (plates MUST be displayed, always).
You have an expectation of privacy for the inside of your car. But not the outside of your car. And even the inside... if it's visible from the windows, it's public.
The reason cell tower data is excluded from Third Party Doctrine has nothing to do with the contents of a cell phone. Cell tower data doesn't have any relationship whatsoever to the contents of the phone.
The relevant factors are:
1. It creates a near-complete picture of a person's whereabouts
2. It is effectively not optional to have and carry a cell phone today
You do in fact have a reasonable expectation that the government can't reconstruct a near-perfect timeline of your daily life without a warrant... obviously.
A cellphone is effectively you in the eyes of the law.
Any automobile may be driven by many people. Only 30% of households are single-person households.
We'll see how this plays out in courts. I'll bet the license plate readers survive. More skeptical about facial recognition though.
> A cellphone is effectively you in the eyes of the law.
No. I just laid out the reasons why cell tower data is different. It has nothing to do with whether a cellphone "is effectively you," which obviously it's not.
All government regulation still has to be balanced against whether it intrudes or not on the rights of the People. The government can regulate vehicles, including ensuring drivers have met whatever requirements a license might require — nobody is arguing against that. But Flock cameras do not help advance any reasonable state interest in that area; their sole purpose AFAICT is for law enforcement, and in a way that intrudes on any basic expectations of privacy.
Just like cell towers record a cell phone's travel history. Cell phones are highly regulated and having one is a privilege. There is no _right_ to carry a cell phone from point A to point B, in secret or not.
This is factually incorrect. You do, in fact, have a legal right to own a cellphone. Cellphone ownership is not licensed and law enforcement cannot stop you from buying a cellphone or carrying it from point A to point B.
Cars are different. You must be licensed and cars must be registered with the state. Cars must display tags for the purpose of tracking. They must be inspected periodically. When driving a car on public roads, you are subject to implied consent; for example, taking a blood alcohol test on demand.
As they say, "driving is a privilege, not a right". Cars are different.
Ask yourself: If a US state passed a law requiring geo trackers in all automobiles, do you think it would be unconstitutional? What about drones, airplanes, boats?
Justifying some control does not justify all control. Voting is a "privilege" too [0] but does that mean any state government should be recording an exact log of your ballot-choices? Surely not.
[0] It should be a far stronger right than what it is right now, but that's separate big debate.
SCOTUS unanimously ruled that a GPS car tracker is a 4th amendment search.
US v Jones ruled that installing a GPS car tracker requires a warrant because it trespasses on private property (the vehicle).
On the other hand, law enforcement can follow your car with a drone, helicopter, or other vehicle without a warrant. Are cameras more like a helicopter or more like a GPS tracker? The Supreme Court has not weighed in yet.
No no no, not true.
US v Jones ruled that installing a GPS car tracker requires a warrant at least when it involves trespass on private property. That case explicitly did not answer whether it would also require a warrant if no trespass was required, and deferred to Katz v United States analysis. That analysis was used shortly after in Carpenter v United States to answer that the government cannot use third party data that people do not voluntarily give up (like cell tower data) given the completeness of the record.
Fundamentally the issue presented is: "At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”"
Obviously "input name, find location at all hours of any day over the past X years" is not the degree of privacy against government that existed when the 4th Amendment was adopted.
You said "no" then vigorously agreed with me. My point was that, contrary to the grandparent, US v Jones does not resolve this question.
That may be true, but I fail to see how that justifies broad, warrantless surveillance. Could you elaborate?
Flock also has facial recognition. There are Flock cameras on public walking paths.
Not sure I agree. The only difference I see is the idea that there's no expectation of privacy while driving on public roads. That's potentially a huge difference, certainly, but I don't think it makes the negative outcome here quite as likely as you think.
Otherwise, it's the same: Google's database is a third-party-owned record of people's movements in public, and Flock's database is a third-party-owned record of people's movement in public.
The ruling in Chatrie had nothing to do with an expectation of privacy, or lack thereof. It was about the dragnet nature of the surveillance. And in that respect, I don't see any meaningful difference between Flock's and Google's systems.
>The only difference I see is the idea that there's no expectation of privacy while driving on public roads.
Isn't there some level of expectation if for your whole life these mass networks didn't exist and you could go to the grocery store without being locked in database prison?
The very first holding of the majority opinion by Kagan:
Held: Police officers conducted a Fourth Amendment search when they acquired Chatrie’s location data from Google because an individual has a reasonable expectation of privacy in his cell-phone location information.
Note the possessive “his”. Crucial to the case, this was held to be the individual’s data, not the third-party’s.
Why would the expectation of privacy be different depending on which spectrum of light the information was captured in (visible vs radio)?
In both scenarios, the data is held by a private third party and a person generates this data pretty much by-default.
This is the relevant bit:
In Carpenter, this Court held that accessing cell-site location information (CSLI) constitutes a Fourth Amendment search because “individuals have a reasonable expectation of privacy in the whole of their physical movements,” 585 U. S., at 310. The Court reasoned that CSLI provides a “detailed” and “encyclopedic” portrait of a person’s whereabouts, id., at 309, and, with that, “an intimate window into a person’s life,” id., at 311. Because people “compulsively carry” their cell phones “all the time,” the Court explained, a cell phone “tracks nearly exactly the movements of its owner,” and thus “faithfully follows” him not only through “public thoroughfares [but] into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”
This question seems preposterous on its face. If you walk around in public wearing a t-shirt with text on it, there's a reasonable expectation that people will read it. Specifically because it reflects light.
This is implying the contents of the data are relevant. They're not. What's relevant is only that the government ends up with a very complete picture of a person's whereabouts without a warrant. That is what is disallowed.
No, it's not about the contents. It's the fact that the data is presented in full public view with the specific intention that it be read.
Nope, this is not an element whatsoever in the most relevant cases, being Carpenter and now Chatrie.
Above was a quote from Carpenter, and the Court seems to have called out that the completeness of the record meant it recorded them, 'not only in public thoroughfares', but also private homes and doctor's office and so forth.
It does seem like that's an element, then -- this is not to say that it's sufficient for anything, since obviously a sufficiently good record of where one goes on public thoroughfares would fail the same test ('reliably reveals that so-and-so went to visit a specialist doctor, divorce attorney, and brothel all on the same day')
It's the completeness of the record that matters, not the publicness of it.
Yes that feels like a good characterization.
Which, I would say, does seem a lot less black-and-white than the cell phone example, and anyone who thinks it's all settled now might be in for a surprise.
I'm going to predict right now that this will boil down to "automobiles are not individuals" and automobiles do not get 4th amendment protections.
Automobiles are not cellphones, and the state is free to regulate automobiles. It could mandate tracking devices in all cars, if there was political will.
But will this put a damper in ALPRs from reading cellular/bluetooth radios?
https://www.thedrive.com/news/license-plate-cameras-will-soo...
Not if the Supreme Court says “no” after a successful challenge.
Of course. We're all here speculating on how the courts will rule. We can come back to this in a few years and see who was right.
Sure, well, multiple Courts have ruled several times in different ways against warrantless mass surveillance, so unless you’re planning to stack the Court, my money is on them remaining consistent here.
"I'm going to predict right now that this will boil down to "automobiles are not individuals""
A vehicle is literally considered an extension of your body, and this has been held up many times, starting with Carroll in 1929.
More recently, the 9th circuit put forth a ruling vacating a man's conviction because a cop merely touched the vehicle, thus triggering a warrantless search complaint.
There's a lot of case law that goes against what you're thinking.
The FCC might be surprised to learn that they do not, in fact, regulate cellphones.
Nope.
United States v Jones already answered this question.
Chatrie was about Google’s personal location tracking feature in Android, not about carrier tower records.
Which is also irrelevant
There's nothing special about any particular technology at all. The question is whether people have an option to generate the data for a third party (Google, Flock, or cell tower operators) and then the sensitivity of that resulting data.
Carpenter is pretty simple: If you by virtue of existing in the modern world produce a bunch of super sensitive data that third parties now have, then those third parties aren't allowed to just give the government that data.
You mean to tell me I can’t just find a loophole to get around the intent of the law? But what about my profits??!?
I'm not sure that's quite as clear as you say it is. It could be "his" as in "about the person" rather than "belonging to the person".
The Fourth Amendment covers exclusively “their persons, houses, papers, and effects” so it has to be one of those.
This is not true.
For example, this would allow the government to wiretap anyone without warrant.
Katz v United States would be the place to start your research.
Is Flock really 3rd party? Yes, they're a private entity, but they largely owe their existence to government contracts. They maintain their database on behalf of various governments. Their primary sales pitch is to law enforcement. It feels like something completely different than Alphabet's or Meta's databases of person/user data.
I do agree that Flock is also not the same as the database of cell phone location data that Verizon or Apple or whoever else might maintain.
It's somewhere in the middle, IMO. At least to my non-lawyer brain.
Being a government contractor doesn't make you a part of the government. A lot of companies have government contracts, many more so than Flock.
Specifically as intended.
For states where law enforcement cannot do such things directly, they can still contract with a private provider, either as an RFP, or (as in some states) "you can't RFP this butttt if some private provider just so happened to provide it, you can use it".
Yes, while I'm not a fan of fully networked, recorded, ubiquitous license plate tracking, it is quite different than the cell phone.
License plate number is a registered identifier mandated to be fully plainly visible, with that identifier tied to a registered individual; compared to cell phone which has identifiers, sure, but they're not registered to an individual necessarily, and not mandated to be plainly visible, rather only "visible" as a means of service provision.
This court has had little respect for precedent so maybe an argument here is more about the fact that rulings like this one may become more likely.
they have little respect for precedent which they agree is wrong, which is a far better standard than letting terrible decisions stand because tradition or because popular.
I really hope this doesn’t turn into yet another case of judges looking at irrelevant facts when making decisions.
The fourth amendment does not say “private conversations,” so when police started tapping phones, the courts focused on whether the phone tap physically intruded on somebody’s house, papers, or effects. Police apparently could tap phone conversations by watching reflections on a nearby window, and the fourth amendment didn’t apply because there was no physical intrusion. The “reasonable expectation of privacy” test come from Katz v. US ( https://supreme.justia.com/cases/federal/us/389/347/ ) where the Supreme Court realized that whether there was a physical intrusion was irrelevant.
The argument I struggle to get around and would love to hear a counter-argument to: Let's say a local police department hired 175 police officers, each being told "Go stand on this particular intersection with a pad of paper and write down every license plate you see". This would be a stupid use of resources, but is not outside the realm of something a well-funded police department could do. Every night they take their reports back to HQ, and file them away.
This is a modestly different situation than one concerning warrantless tracking of phone locations, if for no other reason than my phone oftentimes in my pocket. It is not always visible to onlooking bystanders. And even if it isn't, externally there is no reliably way to differentiate one iPhone from another. In comparison: license plates, when in public, are always visible, and very easy to discern from one-another (different state-unique numbers); so in my mind the expectation of privacy is far lower.
I abhor what Flock does, but I'm not sure I see a constitutional argument for why what they do is unconstitutional.
> but is not outside the realm of something a well-funded police department could do
One officer would absolutely not be able to record on that piece of paper every single license plate that passed through a busy intersection. Not even close.
The number of officers that _would_ be required to do so would absolutely be "outside the realm of possibility" for even a well-funded police department.
That's why flock is different. It's a level of scale that was previously—despite your assertions—impossible.
> In comparison: license plates, when in public, are always visible, and very easy to discern from one-another (different state-unique numbers); so in my mind the expectation of privacy is far lower.
According to Carpenter:
Being present in plain view isn't equivalent to a total surrender of privacy.I would say the purposeless capture of information is the correct counter argument here.
Specifically, even if a county hired all those officers and did what you suggest if there is no purpose other than recording all this information. I believe it would be a constitutional violation. A person has the right to reasonable privacy outside of their home. License plates can and should be recorded when there is a relevant purpose to it. Such as toll collection, or a scoped traffic watch done by a police officer or a traffic camera. The dragnet collection of data for "maybe its useful" or "we don't know when it will be useful, but it might" has generally been struck down when brought to the supreme court.
For Flock's case, they don't operate as far as I know as ticket issuing traffic cameras which have a much tighter level of control of how they operate. IE: Traffic cameras have clear signs near them notifying the drivers of their usage, in some states the issuing of the citation cannot be considered criminal (Civil issuance) and must not capture faces of drivers.
The Supreme Court mentioned your question in 2012 in US v. Jones ( https://supreme.justia.com/cases/federal/us/565/400/ ), without giving an actual answer:
“This Court has to date not deviated from the understanding that mere visual observation does not constitute a search. See Kyllo [v US]. ... We accordingly held in [US v] Knotts that ‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ ... Thus, even assuming that the concurrence is correct to say that ‘[t]raditional surveillance’ of Jones for a 4-week period ‘would have required a large team of agents, multiple vehicles, and perhaps aerial assistance,’ ... our cases suggest that such visual observation is constitutionally permissible. It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.”
The fourth amendment is supposed to address invasive and inconvenient general warrants and search warrants. And that’s “inconvenient” from the point of view of the person being investigated. I don’t understand the view that all’s fair as long as the police do a certain amount of busywork, but that does seem to be popular even among some judges.
Scale obviously does not make this more okay; watching many intersections or cell towers is obviously less reasonable than a single intersection or tower.
> In comparison: license plates, when in public, are always visible, and very easy to discern from one-another (different state-unique numbers); so in my mind the expectation of privacy is far lower.
Legally, overhearing a conversation is not different. If you are loudly talking about your drug deals in public in front of an officer, they can use that as evidence. A police department could hire officers to stand everywhere in public and listen to every conversation nearby.
Or, more specifically, they could stand conspicuously close to every payphone and listen. The phones are in public; the officers don't need to be uniformed. Practically speaking this is not at all different from wiretapping. That's what the police did in Katz- wiretap a public payphone.
Flock cameras are not in any meaningful sense different from having officers follow around everyone and record everywhere they go. Its irrelevant whether one officer is following one person or if many people are following them, each within their own small area. That would absolutely not be legal without a warrant. The only difference is a private company is doing it and selling it to the police, something that should clearly not be legal.
Do flock cameras only store license plates and nothing else at all?
It is self-evident that a very narrow examination of a very narrow data set is different than the 24/7 unlimited surveillance of everything. The law should support this basic proposition no matter where they decide the dividing line is. Flock is on the wrong side of an open air prison. I hope they lose.
This is pretty much how SCOTUS approaches the 4th Amendment, yes.
It's basically a continuous rebalancing of private vs government power, and new technologies cause more rebalancing.
It's very telling that Flock has only just hired a CISO recently. Garrett doesn't care much for anything that might hint at compliance for data sharing.
Here's a reminder that a Montana-LLC registered car is a legitimate privacy-preserving use case and not the tax-evasion that Straw Manners and Ad Hominem attackers make appear to be.
You can still pay your use tax and be a good citizen, and in fact, its probably a better demonstration of your duties as a citizen to protect the right to privacy and say to your local governments that have a history of abusing and selling vehicle registration data to 3rd parties that you do not tolerate that.
Happy to share more, the sites for Montana registration can be shady but the dirt legal one is great.
In California, at least, if you are a resident of the state, you are legally required to register cars garaged in California with the California DMV. (It's actually a little ambiguous in an annoying way; even if you have a car that's garaged out of state, simply bringing it to CA for a weekend and driving it around can potentially trigger the CA registration requirement, again, assuming you are a CA resident.)
I'd be surprised if most other states don't have similar vehicle laws.
And the CHP has a website where you can report violations.
I hear you bringing up 2 separate actions that can trigger a registration requirement.
1) Garaging a vehicle, for x days or more.
2) Driving a vehicle, for x days or more.
Have you looked into what the specifics are, and how they are triggered?
Poking some holes at this:
- Are you on the hook to register vehicles you don't own for actions (1) or (2)?
Consider two examples:
(a) you rent a vehicle,
(b) you drive or choose to house a friends' vehicle.
From what you've stated, logically, anytime you rent a vehicle or operate or house a friends', you now are asked to register it.
Do you think this is accurate? And if so, do you think it would hold in court of law?
>Consider two examples:
(a) you rent a vehicle,
(b) you drive or choose to house a friends' vehicle.
in both cases, the vehicle would already be registered in the state (by the rental company or by the friend).
it is not clear to me why you think the vehicles would need to be re-registered.
I haven't spent much time personally in Cali, but the places I have had to rent a car from I've never had a rental car plated in the same state I'm driving/renting it from
the rental car is obviously already going to be legal in the state (if not cali plated, then registration is probably via fleet registration or international registration plan (IRP), etc).
under no circumstance are you (the customer) going to be required to (or even able to) register the car you are renting.
i would not take car registration advice from a person asking about registering someone else's car at the dmv.
Interestingly I was watching a body cam where an off duty cop road raged punched a driver.
During the investigation the investigating officer had become worried that the assailant would use police resources to further track and harass the victim.
Luckily the guy was driving a company vehicle that did not track to his address.
>not the tax-evasion that Straw Manners and Ad Hominem attackers make appear to be.
Depends on the state, in my former state, Virginia, it is tax evasion. This is not unique to Virginia BTW, Georgia has similar laws. By law in VA, all cars that are garaged in state for longer than 90 days must pay the car tax. Only reason Montana LLC registered cars get away from it is most counties find out who must pay the tax from Virginia DMV so these cars are missed.
> Here's a reminder that a Montana-LLC registered car is a legitimate privacy-preserving use case and not the tax-evasion that Straw Manners and Ad Hominem attackers make appear to be.
I mean, it’s both, right? You’re definitely getting a tax advantage compared to a lot of areas of the country. And how is insurance going to work?
I live in North Dakota and the cost of maintaining a Montana LLC would be more than my yearly registration fee. Something I started doing is getting new plates every year so historical data of my movement based on plate number only goes back a year.
Now all you have to do is ensure your state's DOL doesn't enter into a data sharing agreement with Flock for historical license plate correlation...
Yeah. I'll have to look into that
Tax advantages are not tax evasion. Otherwise, why bother with doing anything that is tax advantaged if when anyone calls it tax evasion or accuses someone of a crime the accused just give up and takes guilt (assumption of guilt over innocence) paying whatever is asked?
Insurance is a bit tricky though I've heard it's simple. Most companies don't ask or inquire about where the cars registered, and neither do repair shops or parts of the claim process inquire into this. If you're uncomfortable with this, you can DYOR and check what happened for claims if a driver who's personally insured is driving a vehicle registered under an LLC/company. I think it isn't true that just because a vehicle is registered by a company, it cannot be used for personal purposes or that insurance companies would make claims more difficult (though check yourself and I'm happy to know what you find)
Many states have laws that require a vehicle to be registered in-state if they have established residence, or similar.
Even if you are able to register a vehicle legally in another state, that does not necessarily exempt you from obligations in your own state... even if it would for non-residents passing through.
Those charged by the AG in CA were charged with tax fraud. It was apparent that they were actively avoiding taxes based on recorded messages and fraudulent documents.
https://www.thedrive.com/news/california-is-done-with-rich-g...
> One defendant texted that another conspirator “made me provide a fake bill of lading which cost $200 but did allow me to pickup the Urus.”
At least in my state, as a former emergency services worker, our EVIP (emergency vehicle incident prevention) course (which serves as a "substitute" for requiring a CDL to drive an emergency vehicle) absolutely tells you that driver liability can and will flow through to your personally, even when driving a work vehicle for work purposes. (Because that also comes with a presumption of liability for any incident that happens in "emergency mode" departments, agencies will generally also hold insurance specifically for that flow through that says "while the law says you can do anything, with due regard, in emergency mode, as long as you stay in our more restrictive SOPs, our insurer will also cover your personal liability".)