What Does the Constitution Say About Flock Cameras?

Hello again everyone, welcome to Washington Gun Law TV. I am Washington Gun Law president William Kirk. Thanks for joining us. I want to thank one of our viewers, Joe B, who was kind enough to actually give us this video idea. Well, here's what I love about it. Normally, I am talking about issues that really only kind of stimulates one side of the political spectrum. I get that. This is an issue that appears to actually have bipartisan support. What am I talking about? Talking about our hatred of Flock cameras. Because it appears that there are a lot of people who are spending a lot of time and some money on power tools to run around and cut down these cameras that are popping up everywhere. There was great debate here in my hometown during World Cup soccer about whether or not they should even be activated, which is why I put them up if you're not going to activate them. But it has a lot of people screaming that this is absolutely positively a violation of the Fourth Amendment, which prohibits unreasonable government searches and seizures. Is that true? We're going to actually try to geek out on that today so that we can all kind of at least understand legally and constitutionally where it all sits right now. So, today, let's spend a few minutes and let's talk about what does the Constitution say about Flock cameras? Okay, America. If you spend any time out in social media land like I do, one, I'm sorry that you have to do it. But number two, you will see that there are all sorts of political issues that really only stimulate one side of the spectrum or the other. However, when it comes to the use of Flock cameras, there appears to be universal hatred across all political spectrums of what's going on there. Many people are screaming that these in fact violate the Constitution. That the Flock cameras, standing alone, constitute a violation of the Fourth Amendment's guarantee against unreasonable government searches and seizures. My gut instinct when I heard that argument is of course it doesn't. It doesn't because whenever we're trying to figure out whether or not a search or a seizure has actually occurred, what we always want to do is take a look at what is our expectation of privacy. And throughout the years, the courts have consistently, and I mean consistently, whether it's a liberal court or a conservative court, it doesn't really matter. When we are doing things in public, we have zero expectation of privacy because we are doing these activities in the public. So, once my gears got turning with Joe's idea, I figured that the research was going to be pretty simple. But then I started looking into it further. And although there is current case law which suggests that really we do not have an expectation of privacy because these are activities that are occurring in public, it appears that the legal framework is beginning to shift towards privacy rights. The leading case right now on the use of Flock cameras is a case that comes out of the United States District Court for the Northern District of Virginia in the matter of Schmidt v. City of Norfolk. There the court upheld the use of Flock cameras, although that decision is now being appealed to a higher court, and the court relied upon the fact that the only thing that Flock cameras were apparently recording was license plate numbers, and that the data was only being stored for a maximum of 30 days. And then when you took a look at the physical network of the cameras, they didn't literally have every square inch of the city covered, so they couldn't actually track the movement of an individual. But the problem is is since that time of that ruling, the technology on a literally a daily basis changes with all types of surveillance. And so now with the integration of AI, we know that these cameras are capable of capturing far more than just license plates, that with the integration of facial recognition technology, which is already in place, they absolutely, positively could track the movement of people. All you have to do is add a few more cameras to your network to make sure that every square inch of your city is blanketed. Sure, the parameters only store the data for 30 days right now, but how easily could that be changed? Couple that with the fact that we're seeing all sorts of instances that are reported on almost on a daily basis now where law enforcement is using the data collected for all sorts of unlawful and immoral purposes. Understand that this data is being shared across all sorts of agencies in your state, outside your state, and perhaps even internationally. So, many are beginning to get concerned that have we crossed the threshold now where it's not so much about the data that's being collected, but what they're capable of doing with all of that data and what they're already doing with that data. Now, there may be hope for future litigation, and that hope comes from a case that was actually ruled upon by the United States Supreme Court just this past term in the matter of Shatree versus United States. There, law enforcement was using what's called geofencing, which is essentially they were looking for everybody's cell phone data that was in a certain geographical area during a certain period of time, which happened to be contemporaneous with a bank robbery. What the United States Supreme Court, however, ruled, police officers conducted a Fourth Amendment search when they acquired Shatree's location data from Google because an individual has a reasonable expectation of privacy in his cell phone location information. And that is now opening the door to a whole new slew of legal challenges, where the challenge is not so much about the collection of the data, but what they're capable of doing with the data once they have it. These large, shared, searchable databases are essentially creating a nationwide surveillance system. And we're beginning to see a new legal theory to challenge the constitutionality of Flock cameras known as the Mosaic theory. You see, when we go back and we look at the Norfolk case, one of the big things that the court was hung up on was even though there was 176 cameras inside the city of Norfolk, the network did not allow them to completely track the continuous movement of a person. But the Mosaic theory, which is currently kind of one of the themes on the Fourth Circuit Court of Appeals challenge now in the Norfolk case, states, "Aggregating thousands of isolated snapshots across a massive network constructs an invasive detailed map of an innocent citizen's private life." Earlier this year, at least three drivers in California filed suit in federal court against the use of San Jose's Flock system claiming that by feeding images of ordinary travel into an AI-powered searchable database, law enforcement is executing an ongoing unreasonable search of the public at large without any individualized suspicion of criminal activity. The ACLU has filed a similar suit claiming the current systems employed by government give them an unprecedented mass surveillance powers that upset traditional expectations of privacy. And now we are getting into an area that even the lower court in the Norfolk case acknowledged, which is that it's one of scalability. This is technology. It will always grow. It will always get better. It will always advance. And at some point, does that scalability tip the scale? And that it's not about the data that's being collected, but what can be done with all the data once they have it stored. And even if we are not at that tipping point yet in the eyes of the court, we are absolutely positively going to get there in no time flat. We're going to see the sharing of these databases. We're going to see the intermingling of these databases. We're going to see more and more technology as it relates to tracking integrated into these systems. We're going to see larger and larger storage of data and a quicker and quicker ability to search that data out. And at some point, if we're not there already, it's going to be in the very near future, that our entire expectation of privacy, which we have operated on for over 250 years now in the United States, will be radically and forever altered unless the courts step in and do something about it. Okay, so what do you guys all think? If it's all really about the expectation of privacy, is it really just about the data that they're capturing or is about what they're capable of doing with the data once they have it? Would love to hear your thoughts in the comments section down below. Everything that we talked about in making this video, we're going to go ahead and link up down below so that you can geek out on it for yourself. And if you got any questions about this or about the stuff we normally cover here at Washington Gun Law, you should know how to get a hold of us by now, but if you don't, that's okay. That's down there in the description box. If you got an idea for a video that we should be doing around here, something like Joe came up with, hey, cool. Click on that link right there and tell us all about it. If you want to subscribe to our monthly newsletter, find out about all the cool things they don't let us talk about here and meet all of our new sponsors, there's a link in the description box for you to do that. And then finally and most importantly, let's remember that part of being a lawful and responsible gun owner like we normally talk about here, is to know what the law is in every situation, how it applies to you in any instance that you may find yourself. Until next time, thanks for watching and stay safe. Okay, like we mentioned earlier, the video today is sponsored by Ground News. Why is that? Well, listen, can you really rely on the mainstream media to give it to you straight? Well, no, you can't. That's why you end up relying so frequently on content creators. But wouldn't it be nice if you had a news medium that could scour 50,000 independent news sources and then give it to you with a bias distribution breakdown, explain all the headline manipulation, and even let you know who owns the media company so you know what side they're coming from? That's what you get with Ground News and you can get 40% off Advantage Plan today by visiting my friends at ground.news/washington. 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