Drivers in Denver may soon have their Fourth Amendment rights restored.
Earlier this month, the Denver City Council voted unanimously to reject a $666,000 contract with Flock Safety to extend the city’s automated license plate reader program. After citizens raised privacy concerns about the city’s use of this surveillance system, Mayor Mike Johnston urged the council to reject the new contract and instead create a task force to study and address the issues. It’s good news that the city is taking these anxieties seriously, but the only true way to restore Denverites’ constitutional rights is to scrap the Flock program altogether.
During the debate May 5 over the contract, at-large Councilwoman Sarah Parady said: “Personally, what I’ve learned in doing that diligence has really given me pause. This is a form of mass surveillance technology.” She’s right.
Currently, Denver has 111 Flock cameras at 70 locations throughout the city. Unlike red-light cameras or speed cameras, which are triggered by specific traffic violations, these cameras watch every vehicle that drives by. They then use artificial intelligence to create a “vehicle fingerprint” with identifying information about each car, such as license plate number, color, bumper stickers, fender damage, and more. Police can then plug in a car’s license plate number into Flock’s massive database and track every location it has been captured at by a Flock camera in the past 30 days.
Flock boasts that its cameras are in more than 5,000 communities throughout the country, allowing its customers to seamlessly share information with one another. And it’s expanding relentlessly: Its founder and CEO’s vision is “a Flock camera on every street corner.” A Flock representative in January told the Buena Vista town trustees that they are in 75 Colorado communities. Those towns include Colorado Springs, Durango, Lakewood, Castle Rock and Boulder.
With the proliferation of these cameras and the ability of departments to share information, police can trace drivers’ movements over the past 30 days, all without a warrant. One reporter drove 300 miles through rural Virginia and then asked police departments for location information on his vehicle. The only question one department asked before agreeing to turn it over was: “You weren’t trying to spy on a cheating wife or something like that, were you?”
This type of information about people’s locations and movements deserves much stricter protections than that. As it turns out, police in Kansas have been caught using these cameras for that exact purpose: stalking exes.
Making matters worse, these cameras can be located near places where individuals expect privacy. A public-source map shows Flock cameras stationed outside abortion clinics, halfway houses, churches, mosques, and gun ranges. Given the density of some cities’ Flock camera networks, it’s not hard to figure out sensitive details.
Suppose that every week a Flock camera captures someone enroute to a church and then a Flock camera captures them heading back about an hour later. Maybe they’re a regular churchgoer. But if their weekly church visit is at 7 p.m., they’re probably in Alcoholics Anonymous, and it’s not hard to figure out the identity of every person in what’s supposed to be an anonymous recovery group. That’s not just offensive — it’s downright creepy.
This type of prolonged surveillance without a warrant has been ruled unconstitutional by various courts. The U.S. Supreme Court, in Carpenter v. United States, ruled that the use of cellphone location data to track people’s locations is a Fourth Amendment search that requires a warrant. A couple years later, a federal court reached the same conclusion about the city of Baltimore’s use of a surveillance plane to spy on people from above. If anything, using dozens of Flock cameras to track peoples’ movements is even more intrusive than Baltimore’s single plane.
In October, our public interest law firm, the Institute for Justice, filed a federal lawsuit against the city of Norfolk, Virginia, over its use of more than 170 Flock cameras. In February, a judge ruled the lawsuit could move forward, writing, “a reasonable person could believe that society’s expectations, as laid out by the Court in Carpenter, are being violated by the Norfolk Flock system.”
After we finally received some of Norfolk’s Flock data, we discovered that the city had nearly 300 records of one of our client’s movements over just one month.
Throughout the country, these cameras have become a hot-button topic, and it’s good to see city officials and courts begin to grapple with the serious Fourth Amendment concerns they raise. If the police want to track someone for a month, they should go to a judge and get a specific warrant based on probable cause. Flock cameras skirt that basic constitutional requirement and invite abuse.
Denver officials are right to pause the Flock contract to study these issues. What they find should lead them to permanently cancel the contract.
Michael Soyfer of Arlington, Va., is an attorney at the Virginia-based Institute for Justice.
Dan King of Washington, D.C., is a communications project manager at the Institute for Justice.
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