Members of the Suffolk City Council,
I am writing to ask the Council to reconsider Suffolk’s continued use of Flock Safety cameras and ultimately end the City’s contract with Flock.
I want to be clear from the beginning that I am not making this request because I believe Suffolk police are currently abusing the system. I have not seen evidence of that. My concern is more fundamental: I do not believe the government should be collecting and storing the location of ordinary residents on such a massive scale in the first place, particularly when the constitutional limits on this kind of technology are becoming increasingly uncertain.
The Supreme Court’s recent decision in Chatrie v. United States makes that concern much more immediate. While the case did not directly involve automated license plate readers, its ruling on historical location data raises serious questions about whether systems like Flock can continue operating in their current form without eventually running into the Fourth Amendment.
The problem with Flock is not whether Suffolk police are abusing it today. The problem is that Suffolk is investing in a system whose primary function is warrantless tracking of people’s movements at precisely the moment the Supreme Court is strengthening constitutional protections for location data.
Chatrie itself does not directly comment on the constitutionality of ALPRs. However, its central ruling is a significant problem for Flock. If accessing a person’s historical location data constitutes a Fourth Amendment search, how does using a network of cameras to collect and later search everyone’s location not raise the same constitutional concern?
Chatrie says that when police access a person’s historical location information, they have conducted a Fourth Amendment search, even though the information was held by a third party and even though the period at issue was only two hours.
If the constitutional issue is government access to a person’s historical location information, why would the constitutionality change because the government created the location database itself with cameras rather than obtaining it from a cellphone provider? Indeed, the government itself is held to a much higher constitutional standard than a private company, even when that government is operating through contracts with third-party businesses.
The obvious response from Flock defenders is that license plates are visible in public, and that a police officer has always been allowed to observe a vehicle traveling down a public road. But that misses the point. An officer seeing my vehicle once on Main Street is not the same thing as hundreds of cameras recording where vehicles are traveling throughout the city, storing those records, and making them searchable later.
The constitutional concern is not necessarily one photograph. It is what happens when millions of photographs are combined into a searchable history of where people have been.
Chatrie clearly creates serious uncertainty for systems like Flock. Virginia courts have already been considering whether warrantless searches of Flock data violate the Fourth Amendment, and the Supreme Court has now strengthened constitutional protection for historical location information. It is entirely possible that a future federal or Virginia court will find that using ALPR databases to reconstruct a person’s movements requires a warrant.
It seems like Suffolk and many other municipalities are taking substantial risk by investing heavily in a system whose most important investigative feature may ultimately be restricted by a court ruling.
This would not just impact future investigations. Existing and pending cases relying on warrantless Flock searches could suddenly face motions to suppress evidence, appeals, retrials, and challenges to convictions. Even if many of those convictions ultimately survive, the cost and uncertainty created for prosecutors, courts, police, and taxpayers could be substantial.
Beyond the legal risk and uncertainty to the city, the core function of Flock is in essence a reversed form of policing.
In a normal criminal investigation, there is suspicion of a crime, an investigation is opened, evidence is collected, and if probable cause exists, a suspect is arrested and charged.
With Flock, this process is reversed.
First, evidence is collected on everyone, even if there is no suspicion of a crime. The location of ordinary people going to work, visiting family, going shopping, attending church, going to a political meeting, or simply driving around their own city is recorded.
Then that evidence can later be searched to investigate a crime, identify a suspect, support suspicion gained through other means, or determine whether someone’s movements are considered relevant to an investigation.
The surveillance happens first. The determination of whether someone is worth investigating happens later.
That poses serious concerns for anyone who is a law-abiding citizen. I personally have never had so much as a speeding ticket. Why is my location being collected by police every time I leave my home? Why should the government have the ability to go back later and search where my vehicle has been when I was never suspected of committing a crime in the first place?
At the end of the day, the constitutional questions surrounding Flock do not just impact people who commit crimes and who should be investigated. They impact everyday, ordinary residents who simply want some peace of mind that their privacy is being respected by their government.
The Fourth Amendment does not exist only to protect criminals. It exists to place limits on government power over everyone.
As a result, I urge the Suffolk City Council to consider ending the City’s contract with Flock Safety rather than continuing to invest in a surveillance system whose central function faces serious and growing constitutional questions.