Source: Brownstone Institute | VIEW ORIGINAL POST ==>
For US citizens, the kind of population-level surveillance one typically associates with China is not an uncertain or abstract future threat. Although less advanced than what one might find in China, such surveillance programs are already here. Furthermore, they are growing ever more intrusive while our courts have yet to provide meaningful guidance on their constitutionality.
Such were the sentiments expressed in a December telephone interview by Michael Soyfer, an attorney with the Institute for Justice, a public interest law firm that describes itself as seeking to challenge abuses of government power and protect the constitutional rights of Americans.
“I don’t think courts have grappled with the coming age of mass technological tracking,” Soyfer stated.
“The Supreme Court really hasn’t had a case on…population-level technological surveillance,” he later added.
In instances where the courts have addressed such issues, Soyfer said, it typically has been in the context of the implementation of a limited number of cameras or pertained to searches directed at specific individuals as part of a criminal investigation.
Soyfer noted this was the case in both Jones and Carpenter, a pair of Supreme Court cases which respectively concerned the placement of a GPS device on a person’s car and the use of historical cell phone location data by law enforcement.
Yet whether law enforcement can maintain a detailed record of everyone’s movements through the use of increasingly sophisticated mass surveillance technologies is simply not something on which the courts have ruled definitively or even provided much direction.
This is something Soyfer and his colleagues hope to help change through a lawsuit against the city of Norfolk, Virginia.
Norfolk Virginia’s “Curtain of Technology”
In October 2024, Soyfer and the Institute for Justice filed a lawsuit against Norfolk, as well as the city’s police department and its chief of police, Mark Talbot, over the Norfolk PD’s use of automatic license plate readers, or ALPRs, a type of camera that collects time-stamped, identifying information from passing vehicles that can then be entered into an interjurisdictional database.
Although sometimes portrayed as less intrusive than other surveillance technologies like facial recognition or CCTV systems, ALPRs can be used to track vehicles, monitor the associations of drivers, and learn the intimate details of a person’s life.
As Soyfer pointed out, “the whole point of a license plate number is to identify the registered owner of a car.” Hence, arguments that law enforcement is simply collecting information on vehicles as opposed to people should do little to assuage concerns that ALPRs are a form of mass surveillance.
According to Soyfer and the IJ’s October 2024 complaint, Norfolk’s ALPR program makes it “functionally impossible” for people in Norfolk “to drive anywhere without having their movements tracked, photographed, and stored in an AI-assisted database that enables the warrantless surveillance of their every move.”
Police Chief Talbot, at a May 2023 Norfolk City Council work session, described the surveillance program as “creat[ing] a nice curtain of technology” before later confirming its breadth, stating, “It would be difficult to drive anywhere of any distance without running into a camera somewhere.”
Norfolk’s city website states that in 2023 the city installed 172 ALPRs from Flock Safety, one of the largest vendors of ALPRs in the country. The IJ’s complaint notes the Norfolk PD later sought to procure an additional 65 cameras.
Given that Norfolk is not that large of a city, Soyfer noted, “172 license plate reader cameras…is a pretty big deal” and was one of the factors that resulted in the IJ taking an interest in Norfolk’s program.
Statements like the one made by Police Chief Talbot, he added, also highlight “the specter of this kind of all-encompassing surveillance state where your every move is just being logged in a government database.”
One of the other primary reasons Soyfer said he and the IJ took an interest in Norfolk’s ALPR program is that it is in the Fourth Circuit, the same circuit as Leaders of a Beautiful Struggle v. Baltimore Police Department, a case in which the Baltimore PD’s aerial surveillance program was successfully challenged in 2021.
“In that case,” Soyfer stated, “Baltimore was operating [a] program that flew drones over the city during the daytime and basically took, you know, second-by-second images of about 90 percent of the city.”
“The Fourth Circuit held that that program was unconstitutional…that it was collecting information about the whole of people’s movements and that even though it wasn’t exactly easy for Baltimore to identify specific people, just having their movements really invaded people’s privacy and their personal security because it’s pretty easy to figure out who people are from contextual clues,” he said.
“We see Norfolk as trying to accomplish from the ground what Baltimore was doing from the air…” Soyfer added. “If anything, [it’s] more invasive because Norfolk knows people’s license plate numbers and they can easily look up who they are.”
The two plaintiffs in the IJ’s case are Crystal Arrington, a certified nursing assistant with a small business that assists with elder care, and Lee Schmidt, a former chief petty officer in the US Navy who retired with an honorable discharge after more than 21 years of service.
“Like most people,” the IJ’s complaint states, “they try to maintain a reasonable amount of privacy in their lives. And they find it downright creepy that the City’s 172 unblinking eyes follow them as they go about their days, noting where they are and when, and storing their movements in a government database for any officer to see.”
In a January telephone interview, Schmidt said he first noticed Norfolk’s ALPRs popping up in late 2023, prior to his retirement, as he was driving to work.
Through a series of email exchanges with one of Norfolk’s city council members, Schmidt said he learned more about what the cameras did and that they had initially been installed by the police department without the city council’s approval or even meaningful policies governing their use.
Previous reporting has suggested the cameras were initially paid for using funds received through the American Rescue Plan Act. Although ARPA has served as a common source of funding for the expansion of state and local surveillance programs in recent years, the use of ARPA funds for such purposes has been criticized as both a misuse of Covid relief funds and, in some cases, an attempt by law enforcement to circumvent the will of legislative bodies.
Attempts were made to contact Norfolk’s mayor, Kenneth Alexander, in addition to several current city council members, regarding whether the Norfolk PD set up the cameras without the city council’s knowledge or approval, as Schmidt claimed, as well as whether ARPA funds were used to pay for them. However, Mayor Alexander and the city council members contacted did not respond.
When asked whether he would have been more comfortable with Norfolk’s ALPR program had it been approved through a more formal process, Schmidt stated, “I still would not have agreed with the cameras.”
Schmidt later noted his concerns with the cameras go beyond what he sees as a lack of city council involvement in their initial implementation or lack of oversight. He said he also takes issue with the surveillance network they create.
Similarly, Soyfer said, although there may be troubling aspects to how the program was established and the lack of restrictions on its use, “We think the problem is that the government has this information in the first place and it can get it without prior judicial approval.”
The Fourth Amendment, Soyfer said, sets up a system where there is a “judge in between the police and the person who’s being searched.”
“The whole point of that is to kind of temper…this overzealous desire on the part of police to fight crime that may lead them to violate people’s rights,” he said
However, Soyfer added, he questions whether Fourth Amendment law at the moment is “sufficiently robust or developed” to address such violations when mass surveillance is involved.
Fortifying the Fourth Amendment
Through the IJ’s case against Norfolk, Soyfer said, he and his organization would like to better fortify Fourth Amendment law.
Simultaneously, he said, this involves proposing a new standard for evaluating the threat of mass surveillance and other government searches to Americans while returning the Fourth Amendment to “first principles” by “focusing more on rights of security that the Fourth Amendment outlines rather than…privacy, which has been the dominant standard since the ’60s.”
“We think that that sets up a better framework for courts to decide these issues because the privacy standard, in practice, has been a little mushy and has not always protected people’s Fourth Amendment rights to the full extent,” he said.
“The Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures…” said Soyfer.
“Right now,” however, said Soyfer, “[the courts] ask if something is a search by asking if it infringes on a subjective and reasonable expectation of privacy – but the Fourth Amendment doesn’t say anything about privacy.”
“At the founding,” said Soyfer, “a search was just purposeful investigative conduct.”
Under the test Soyfer and his colleagues propose, the courts would ask whether a surveillance program or other government search constitutes purposeful investigative conduct, whether it violates personal security, and whether it is reasonable.
Applying this standard to Norfolk’s ALPR program, Soyfer said, “the whole point of this program is to investigate” and “part of your personal security is your movement from one place to another.”
As for whether the program is reasonable, Soyfer noted, the term “reasonable” was “kind of a term of art at the founding” meaning a “violat[ion] of a common law search and seizure rule that existed at the founding.”
“In our view that would set a baseline so you can’t go below [that] level…” he said, “but you can go above it in light of how society has changed and you can supplement those rules because they don’t cover everything.”
Hence, in the case against Norfolk, and in future Fourth Amendment cases, Soyfer said, you can ask whether it is “reasonable to require police, in light of the information the search is collecting, to go to a judge first and get a warrant.”
In cases such as the one concerning Norfolk, Soyfer said, he believes it is.
