Vehicle Fingerprinting Through Pervasive Camera Surveillance Likely Violates Fourth Amendment, Court Finds

On February 5, a §1983 case alleging violation of the Fourth Amendment for the City of Norfolk’s use of Flock to indiscriminately track residents’ movement around town survived a baseless standing challenge and motion to dismiss for failure to state a claim. This decision marks a decisive victory against the warrantless surveillance of Americans.

Flock Safety is a service that installs hundreds of automatic license plate reader cameras in a given area to track the movement of vehicles for law enforcement, neighborhood watches, and other private customers. Instead of snapping a picture, comparing a license plate to a database, and then getting rid of the data, Flock purports to build a massive, searchable database of the movements of each car for law enforcement.  According to the complaint, officials can use the database to “create maps of where people have been, where they tend to drive, and even who they tend to meet up with” without a warrant or even probable cause. As the city of Norfolk police chief explained, “it would be difficult to drive anywhere of any distance without running into a camera somewhere.”

In the 2018 case Carpenter v. United States, the Supreme Court affirmed that individuals have a reasonable expectation of privacy in their long term movements (even in public spaces) and, because of that expectation, queries into long term location tracking data constitute a Fourth Amendment search that requires a warrant.

The U.S. District Court for the Eastern District of Virginia found that the city’s tracking of individuals through the use of Flock was “notably similar to [the facts] in Carpenter.”  The court held that plaintiffs plausibly alleged a reasonable expectation of privacy in their movements, and that those expectations were violated by the pervasive camera systems installed in Norfolk. The court further held that Plaintiffs plausibly alleged that querying of Flock’s databases to access long term location data without a warrant constituted a Fourth Amendment violation. Finally, the court found that this Fourth Amendment violation was a sufficient injury in fact to confer standing to sue the City. Based on these findings, the court denied the City’s motion to dismiss both on standing grounds and for failure to state a claim.

EPIC has a particular interest in the impact of new surveillance technologies that have the capacity to enable warrantless, pervasive mass surveillance of the public by law enforcement agents. Such techniques offend the right of individuals to operate vehicles on public roads while maintaining privacy and their right to be free of unreasonable searches. EPIC has routinely urged legislators and courts to take meaningful steps towards protecting the privacy interests of motorists.