Flock Safety, an eight-year-old company based in Atlanta, promotes its license plate readers (LPRs) as tools that can “stop crime in its tracks with evidence that drives action.” Charlie and Angie Wolf had a less benign take on the Flock Safety Falcon LPR camera that was installed directly across the street from their home on Lone Pine Road South in Cleburne County, Arkansas, on May 13. The retired couple viewed the camera, which regularly took photos of their driveway and front yard, as an invasion of privacy, since it was recording their movements and those of anyone who happened to visit them.
The Wolfs are hardly alone in expressing concern about the privacy implications of LPR cameras. But local officials in Greers Ferry, the tiny town that had contracted with Flock Safety to install the camera on Lone Pine Road South and four others, were unfazed by the couple’s objections. They repeatedly rejected the Wolfs’ request that the city move the LPR camera. Those officials had a change of heart after the Institute for Justice detailed the Fourth Amendment issues raised by the camera in a July 17 letter to the Greers Ferry City Council.
“After months of warrantless surveillance, we’re relieved the camera has finally been moved from in front of our home,” Charlie Wolf says. “But nobody else should have to experience this either, and it’s time for cities across the country to reassess whether partnering with Flock is really worth sacrificing our Fourth Amendment rights.”
The day after the camera appeared, Wolf asked the town’s police chief, Kallen Lacy, if it could be repositioned in light of its intrusiveness. The answer: “It’s not moving.” In June, the Wolfs sent the city council a letter officially requesting that the camera be moved, arguing that it violated the Fourth Amendment’s ban on unreasonable searches.
“We are writing because the city of Greers Ferry has placed a surveillance Flock A.I. camera on county property directly across…from our residential home that photographs our yard, curtilage, and vehicles each time a car passes by and each time we leave or return home,” the Wolfs said in the letter, which Charlie Wolf read aloud at a city council meeting on July 8. “The Flock camera—and by extension, the city of Greers Ferry—is logging and tracking our movements and conduct in a manner that violates our constitutional right to be secure in our home and our right against unreasonable searches under the U.S. Constitution’s Fourth Amendment.”
For that reason, the Wolfs said, “we formally request that the city council remove the Flock camera so that it 1) no longer photographs our yard, curtilage, vehicles, or children and 2) no longer logs our movements to and from our home.” The camera “has continuously captured images of law-abiding citizens, friends, visitors, and our vehicles,” they noted. “This is done without reasonable suspicion, probable cause, a search warrant, [or] the benefit of impartial judicial review.”
Charlie Wolf reiterated the couple’s objections at the city council meeting. “Every time [I], my family, friends, children, and grandchildren come to [the house], leave, play in the front yard, or drive into our private property, or even go to the mailbox,” he complained, “we’re being photographed and entered into a database without consent or violation of any law.” According to the Institute for Justice, “it got to the point where the Wolfs’ grandchildren stopped visiting.”
The city council meeting included a video appearance by a Flock flack who defended her company’s products and tried to allay Wolf’s concerns. Lacy, the police chief, also spoke, saying he had discussed the issue at length with Wolf. While acknowledging Wolf’s “distress,” Lacy rejected the notion that the camera’s placement raised any constitutional issues. “It’s a crime prevention measure for our city,” the police chief said. “There are over 5,000 cities in the country that use [LPR cameras] in 46 states, so there is no constitutional violation there.”
City Attorney Blake Spears was similarly unimpressed. “If you want the camera moved,” Spears told Wolf, “my suggestion would be to get a court order.” Lacy confirmed that “we have no plans to move the camera.”
The city changed its plans after it received a letter from Institute for Justice Senior Attorney Joshua Windham, who explained why Wolf’s objections deserved more respect than they had received. In the 2018 case Carpenter v. United States, Windham noted, the Supreme Court “held that the government violated a reasonable privacy expectation when it accessed seven days of a party’s historical cell site location data.” That decision reinforced the point that “a person does not surrender all Fourth Amendment protection by venturing into the public sphere.”
The ruling in Carpenter was based on the principle that the Fourth Amendment “must preserve at least as much privacy as Americans would have enjoyed when it was adopted,” Windham wrote. “At that time, police lacked the means to create a historical record of people’s physical movements—they simply did not have the manpower or the technology to do so.”
Applying that principle, “courts are increasingly recognizing that the placement of a surveillance camera in front of a home may violate a reasonable privacy expectation,” Windham said. In 2022, for example, a federal judge in Iowa (which is part of the same circuit that includes Arkansas) concluded that “the use of continuous video surveillance [of a home] without a warrant appears to be on tenuous constitutional grounds.”
The supreme courts of Colorado and South Dakota went further, holding that “pointing a video camera at a home for multiple months without a warrant violates the Fourth Amendment,” Windham noted. “Both courts stressed that long-term camera surveillance can reveal residents’ and guests’ aggregated ‘comings and goings,’ and held that people reasonably expect those kinds of routines—routines like when they are typically home and when they are not—will be kept private from prying eyes.”
Windham also mentioned his organization’s Fourth Amendment challenge to the deployment of Flock cameras in Norfolk, Virginia. In February, a federal judge rejected the city’s motion to dismiss that lawsuit, Schmidt v. Norfolk.
“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,” wrote Mark Davis, chief judge of the U.S. District Court for the Eastern District of Virginia. “In short, the Court finds that considering existing precedent, the well-pled facts plausibly allege a violation of an objectively reasonable expectation of privacy.”
The city’s monitoring of the Wolfs’ home “resembles the surveillance that was recently struck down by the Colorado and South Dakota Supreme Courts,” Windham argued. “Like the cameras in those cases, the Flock camera across the street from the Wolfs’ home captures part of their property (specifically, a driveway entrance and part of their front yard). Like the cameras in those cases, the Flock camera here records the Wolfs’ ‘comings and goings’ every time they enter or leave their property (specifically, by using a Flock LPR designed to capture every car that drives by). And, worse than the cameras in those cases, the Flock camera here will surveil the Wolfs indefinitely.”
Windham also raised a broader objection. “The Flock cameras installed around Greers Ferry resemble the network of cameras that the Schmidt court held may violate the Fourth Amendment,” he wrote. “Although Greers Ferry currently uses fewer Flock cameras than Norfolk (172 versus five), Greers Ferry is a far smaller city (53 square land miles versus 7). Further, a review of Google Maps suggests that Greers Ferry has far fewer public roads that people can use to get from place to place, which suggests that Greers Ferry would not need nearly as many Flock cameras per square land mile to achieve the historical location tracking that the Schmidt court held may violate the Fourth Amendment in Norfolk.”
The morning after Windham sent that letter, the city of Greers Ferry posted a defense of LPR cameras on its Facebook page that read like a Flock press release. “Flock Safety cameras are revolutionizing crime prevention and resolution by capturing vital license plate and vehicle details,” it said. “Their impact is evident across Arkansas and beyond, aiding law enforcement in saving lives and safeguarding property.”
To back up that argument, the city cited “Success Stories in Arkansas,” including the recovery of stolen vehicles and the arrests of homicide, assault, and robbery suspects—all “thanks to Flock cameras.” Those cameras, the city said, do not “access personal info from plates” or “record sound or video.” But they do “capture vehicle license plates,” “generate leads and solve cases,” “alert officers about suspect vehicles,” “reduce crime rates,” and help “recover stolen goods.”
The purported effectiveness of these cameras, of course, has nothing to do with the constitutional question of whether their use complies with the Fourth Amendment. As Windham pointed out, the answer is not as clear as Lacy seems to think.
“We’re thrilled that the Wolfs will no longer be subjected to constant warrantless surveillance of their property,” Windham says. “That said, there are still massive Fourth Amendment concerns with the use of these license plate reader cameras, and we urge the city not to renew its contract with Flock Safety when the initial term is up.”
reason.com (Article Sourced Website)
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