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The Cato Weekly Podcast: The Controversy Over Flock Cameras

Host: Laura Bondank-Harmon Guest: Clark Neily, Senior Vice President for Legal Studies, Cato Institute

Cold Open

Narrator: How much privacy and freedom are we willing to give up in the name of security? That question is increasingly relevant, thanks to a technology you may not even realize is watching you. Flock cameras are helping police crack cases, but they’re also raising a serious question about privacy. How much of your everyday life should the government be able to watch? They’re supposed to help police and law enforcement fight crime, but critics worry about privacy and misuse, including by the police themselves. Three former sheriff’s deputies in Georgia used Flock cameras to stalk people. And it’s this type of concern that has become so intense that now more than 20 cities are moving to cancel Flock camera contracts. Flock operates over 120,000 automatic license plate readers throughout the country. These cameras photograph your car, record where and when it was seen, and allow law enforcement and other clients to search that data later. This technology is being used to identify stolen cars and crime suspects, but it also means that the government can access that data and track your trip to the grocery store, doctor’s office, movie theater, or any other place you might want to go — all without a warrant or probable cause. Flock Safety is making changes to its cameras as cities across America express concerns about privacy and surveillance. Dozens of drivers nationwide say they’re being unfairly pulled over, some even at gunpoint, due to alleged misuse of Flock Safety’s license plate readers.

Voice from the community: I don’t want to be in a situation where these tech companies — a handful of tech companies — know everything about you and know where you’re going. And I know they collect a lot as it is, but I think it’s going to get a lot worse. So isn’t this a problem for liberty?

Interview

Laura Bondank-Harmon: I’m Laura Bondank-Harmon, and this is the Cato Weekly Podcast. Today, I’m joined by Clark Neily, Senior Vice President for Legal Studies at the Cato Institute, an expert in constitutional law, over-criminalization, and police accountability. Hi, Clark. Thanks so much for being here today.

Clark Neily: I’m excited to be here, Laura.

Laura Bondank-Harmon: So can you tell us what are these devices? What is an automatic license plate reader?

Clark Neily: This is a relatively new kind of technology that basically entails putting a camera in a public place where it can observe — currently, mostly traffic, just people driving their cars around. And these cameras can record various data about the cars, including license plates, but increasingly also potentially other identifying characteristics, like a particular bumper sticker. These images are stored and searchable. And so, in theory, the government now has this database so that if, for example, a crime occurs and they’re trying to figure out what vehicles were leaving the scene of that crime during a certain window of time, they would be able to go to this database and identify those vehicles. That’s the theory, anyway. And sometimes it actually does work that way. But of course, there’s a lot of other baggage that comes with it.

Laura Bondank-Harmon: How is the information captured by ALPR stored? You mentioned this database — is this database centralized to the department that manages the cameras?

Clark Neily: Well, as we all know, Laura — you know at least about as much about this subject as I do, so this is going to be, I think, more of a conversation than an interview. But part of the problem is we don’t know exactly for sure who’s got the relevant information at any time. What we do know is that there is a private database that’s maintained by the companies that offer this technology to law enforcement. So that would be Flock, which has the majority share of the market right now, but also Motorola and Axon. So I believe with respect to all three of those companies, the main form of storage for the information is in a company database. But then the real question — or an important question — is, well, who exactly has access to that database? And if you think it’s just the law enforcement agency that is operating the particular cameras in question, we’ve got a rude surprise for you.

Benn Jordan (security researcher, from Senate testimony): I publicly demonstrated that by pushing the button on the camera three times, I was able to access all of the data, or reprogram the device however I wanted, in under a minute. Both Axon and Motorola are actively rolling out the same reckless features that we’re shaming Flock for. And you can expect these same vulnerabilities will continue to happen over and over again when innocent people’s data is traded between private companies and police without any safeguard or protection.

Laura Bondank-Harmon: Well, I think that’s one very interesting aspect of the conversation around what most people call Flock cameras. So we say “Flock cameras” — we’re talking about these automatic license plate readers. Flock has become sort of the generic term, like Kleenex. What we’re talking about is a camera that’s out there in public recording images — right now mostly of vehicles, but that could change. So when we say “Flock camera,” think of a whole bunch of cameras out there in public, watching people persistently wherever they go.

Clark Neily: Yeah, and I think one interesting thing about Flock cameras is we’ve always had cameras in public for a very, very long time. If you walk past any public building, you know that you’re on camera. You know that there’s CCTV outside the public courthouse.

Laura Bondank-Harmon: But these are different. Can you explain why these are different?

Clark Neily: Well, of course, the biggest difference is that they are operated by the government under a contract with one of these companies. So it’s not the same thing as a company that puts a camera outside its business to capture images of, you know, maybe somebody breaking in after hours, or even the increasingly common use of cameras on people’s front doors, like a Ring camera, right? Those are all private individuals making private decisions to put these cameras in particular places. And as you say, we all sort of have an understanding that as we walk through a neighborhood, or walk down a block with a bunch of retail businesses, there’s some chance that we’ll be captured on somebody’s camera. But up until this point, at least, there hasn’t really been any ability to sort of throw all those images and all that information together into a giant database, which then becomes searchable. And suddenly now, it’s not just that maybe a few houses saw you walk by on your morning walk, but there’s a pretty decent chance that somebody could reconstruct your entire day, all the places that you went. Now change one important thing and have that be, you know, the government, right? And as we alluded to earlier, it’s not just the police department in whatever city or town you happen to live in — there’s a lot of information sharing that happens among law enforcement agencies. And so you’ve got the law enforcement community deciding to install these cameras, save these images and other data, and search them, generally speaking, whenever they want, on their own prerogative, and share them among each other. That, I think, is a much more concerning — I might even use the word sinister — environment than one in which a whole bunch of private businesses and people happen to have cameras that capture some people for some part of their day, and usually not much of a day, and don’t have the ability to really pull that data and search it, and also don’t really have the incentive. Like, why would you do that if you had a Ring camera, right? Information storage is expensive. Searching that information is expensive, or at least it has a cost, and nobody would have any particular motive to do that. But guess who does have a motive to save the information and err on the side of searching it whenever they’re in doubt: law enforcement.

Laura Bondank-Harmon: I think another really scary thing about these systems is that the databases are retroactive, right? So it’s not like the police are just searching a small window of time. Different agencies have different retention periods, and they can go back in time and track you in the past, in addition to tracking you in the future. There’s really no limit on how many of your movements they can map out, and how long they can follow you.

Clark Neily: Yeah, you know, we parents — those of us who have children — understand that one of the things you have to talk to your kids about is that in this era, anything they might do in public might live forever, right? You make an off-color joke at a party, or you embarrass yourself in some way — if somebody happens to be recording that and it goes on the internet, it’s there forever, potentially. And that’s really what you’re talking about here, I think — these images of people going about their business are there forever. And of course, there’s always the rejoinder: well, if you’re not doing anything wrong, why would you care? Well, first of all, define “not doing anything wrong.” What’s considered wrong can change over time. And also, maybe it’s not particularly relevant for anybody to know what doctor you went to yesterday, right? But maybe you get nominated to be on the Supreme Court, or you run for office, and suddenly people are very interested in what church you go to, or how many times you went to see a doctor, or maybe you went to see a mental health provider. That information wasn’t particularly relevant to anybody at the time it happened, but a few years later, it’s very relevant, and who knows how long that information sticks around in one of these databases. And law enforcement has these kind of strong and sometimes perverse incentives to keep that information indefinitely. Most police departments have any number of cold cases — cases involving sometimes very serious crimes that have not been solved. The evidence that’s been gathered may be sitting in boxes in a warehouse, but every once in a while, these cases do get solved, because somebody just went back and looked at evidence they already had in a fresh way. So they’re going to have an incentive to hold on to this information so that they can search it retroactively. Now, maybe sometimes that will help them solve a case and take a really bad person off the streets. But guess what — it can also be used to harass, oppress, embarrass, or otherwise abuse people who have not actually committed crimes but have come to the attention of law enforcement in some way. And we’ve already seen this technology used by police officers to stalk ex-romantic partners, or to stalk prospective romantic partners — people they might be interested in. So it’s not at all a surprise that there are any number of incentives people might have to access this information for non-law-enforcement purposes, in a way that, again, can be quite sinister.

News clip: Police officer who used license plate reader cameras to track down a woman and wrongly accused her of theft will be disciplined. This story has been spreading online. North Carolina cop Elizabeth Snowman allegedly accessed the Flock system more than 30 times to track her boyfriend’s ex-wife. The sheriff’s office says that a deputy accessed license plate readers for personal reasons; investigators say an audit found that she ran searches involving at least one license plate over a three-month period. Authorities arrested her today.

Clark Neily: Yeah, and I think it’s really important to emphasize the scale of Flock’s system. Flock isn’t the only manufacturer of these devices, but Flock operates over 120,000 of these cameras in 49 states. They’ve got contracts with over 6,000 communities, and Flock itself has claimed that their devices conduct over 20 billion scans per month.

Laura Bondank-Harmon: And you mentioned some of the instances of misuse that have really made headlines recently. And in response, Flock has come out with some policy changes — specifically, one that says they will cap data retention at seven days. But there are ways around it: you can download data for certain purposes, though now you have to have a stated reason. But do you think these policies are going to be adequate safeguards?

Clark Neily: No. No, I don’t think so. Look, I don’t want to discount them entirely, and I don’t think we should discourage Flock and other companies, and individual departments and law enforcement agencies, from embracing these kinds of remedies to problems we can document. But at the same time, I think we should be absolutely laser-focused on whether they really work. It’s one thing to have on paper a policy that says, for example, that police officers have to identify a legitimate law enforcement objective in order to access the Flock camera. That policy is on the books in many, if not all, departments. And yet we’ve seen evidence that they’ll fill out a form that just says, like, “investigation,” without any explanation of what it is. Does that comply with the policy? Not as far as I’m concerned. So I think it matters tremendously how effective these guardrails really are. I don’t feel like we have a lot of transparency into that. It’s all fine to put that down on paper, but how assured should we be that they work in practice? And I don’t think we have good data on that yet.

Laura Bondank-Harmon: On the topic of transparency, it seems like a lot of these cameras just sort of popped up overnight. Do people get a say when and where these cameras go?

Voices from the community: Well, it depends who you ask. It should be a mixture of the city citizens as well as, like, the mayors. We have community discussions. I think that should generally be a community-based decision, as with all things. Legislators are ideally elected by people, but I think town halls are a good way to discuss these things, especially since it seems like a lot of people are against them. We should. We should. The voters should decide. And if our representatives are not going to listen to us, we should vote them out.

Clark Neily: The fact of the matter is we don’t really know — we can’t even really estimate the percentage of time these cameras are basically implemented by police unilaterally, without even sometimes asking permission from the city council or whatever other body nominally oversees the police. They’ll just assert, “Oh, this is just a routine law enforcement activity — we didn’t have to ask anybody, and we didn’t particularly publicize it.” I will tell you, I actually searched for the first time a couple of weeks ago — you can go to their websites to see if there are any Flock cameras in your community — and I was shocked. I live in a nearby town outside of Washington, D.C., and sure enough, there were Flock cameras all over the place at an intersection that I go by probably every day for various reasons. And I was floored. I didn’t have the slightest idea that this technology had been installed in the town where I live. And I would say I am more engaged than your average person, and I was quite surprised. Certainly nobody ever asked me. I didn’t see this on any ballot. Nothing was distributed to my home, or through the many ways the jurisdiction I live in communicates with me — particularly when I owe some money for utilities or whatever it might be. They definitely have the means to get in touch with me, and they do, when they want to hear from me. And I heard nothing about this. I suspect that’s how it is for most people — you are not going to hear anything about this technology before it gets implemented. And then, of course, once they’ve paid for the cameras and they’ve been installed, it gets much more difficult to undo that. So I don’t find the process by which this technology has been installed by police departments and other law enforcement agencies to be particularly democratic. But you’ll get a different story if you ask the people at Flock.

Laura Bondank-Harmon: Now, I want to talk a little bit about the constitutionality of this type of surveillance. The Fourth Amendment gives us the right to be secure in our person, houses, papers, and effects —

Clark Neily: — against unreasonable searches. That’s right. Yes, against unreasonable searches and seizures. And this past summer, the Supreme Court decided a pretty important Fourth Amendment case called Chatrie v. United States, in which it extended the Fourth Amendment into the digital age, addressing cell phone location history. And it held that individuals do have a reasonable expectation of privacy in their cell phone location history, so the government has to get a warrant before they access it.

Laura Bondank-Harmon: How does that translate to Flock cameras?

Clark Neily: Again, it depends who you ask. If you ask proponents of this technology, they’ll tell you it’s totally irrelevant, because you are out in public. When it comes to public data, you do not have — legally — a reasonable expectation of privacy in a public place. Okay, you don’t — that is the black-letter law in the United States. All that’s happening here is that people are recording you with a camera, just as they have the right to observe you with their own eyes. All those cameras do is record the license plate number, the make and model, and color of the car. That’s all it does. There’s a misperception, I think. The reality is that when we look at various ways the government uses technology to surveil people, or to visualize things they wouldn’t otherwise be able to see, the one thing you can always count on is that the proponents of law enforcement using a particular technology will always be way, way behind the curve. So I’ll give you a few examples. There was a 2001 case called Kyllo involving thermal imaging. Law enforcement, in defending this technology, essentially said, well, all that’s happening is police are going around with a device that enables them to see unusual amounts of heat coming out of a house, but that’s not something you have any privacy interest in — you are exuding that heat into the atmosphere, that’s just something we can look at. And the Supreme Court said, no — you’re using a particular kind of technology to observe something your own senses would not enable you to observe. That’s a search. Another case, in 2014, called Riley — the government said, look, when we arrest somebody, we get to look in their wallet without a warrant, because they’re looking for weapons inside the wallet, in case you’ve got a razor blade in there or something you could hurt them with. And so the question arose: does that exception to the warrant requirement extend to searching somebody’s smartphone when you arrest them? Can you search the entire smartphone without a warrant? And again, law enforcement’s position was, hey, this is just like a wallet — you carry it around with you, and it’s got some of your stuff in it. And the Supreme Court, nine-zero this time, said absolutely not. A smartphone is categorically different from a wallet. A wallet’s got some money, a couple of credit cards, and maybe some pictures of your family in it. Your smartphone’s got your entire life on it — how are those the same thing? And then we had a case called Carpenter a couple of years ago, involving cell-site location information, where you’re going around just about your business with your cell phone, as most of us do these days. And what you may not have realized — although I think more of us do now — is that your cell phone is constantly in communication with various cell towers, and that information can enable the government to know basically where you are. And once again, the government’s position was, oh, this doesn’t have anything to do with the Fourth Amendment, because you’re voluntarily sharing this information with whatever service provider you subscribe to. The Supreme Court, once again, batted that down. And I think it’s very likely that’ll happen in this context too. So you’ve got all these people — including, I think, somewhat shamefully, scholars at certain organizations that are supposed to be on the side of freedom and limited government — out there flacking for Flock, we might say, and saying, oh, the Fourth Amendment isn’t implicated here because you’re just out in public, and you don’t have any privacy interest once you decide to go out in public. And again, I think it is very likely they will once again be wrong, because they don’t really understand the way this new technology implicates a key constitutional value: that you have a right to be secure in your houses, persons, papers, and effects — your stuff — as you go about your business. We haven’t really confronted this question of, okay, yeah, I’m out in public, but you are using a technology that is increasingly able to follow me everywhere I go. And the hypo that I like to use in this context is: okay, well, what if they just had a drone assigned to each citizen, and from the moment you step out the door of your home, this thing is right there over your shoulder and follows you everywhere you go? Well, that would be a really effective way not only of solving crime, but preventing crime, right?

Laura Bondank-Harmon: No — that would be a dystopian nightmare.

Clark Neily: But why would that not be the end rationale of this technology? Why only surveil people 75% of the time when you can surveil them 95% of the time? Wouldn’t that be a much more effective crime-fighting technology? Of course it would. I really wonder what proponents of this technology would say about my drone hypo. Would they say, “Well, you know what, that does sound pretty good”? Or would they say, “Wait a minute, wait a minute — that would be a dystopian nightmare, and we’re not going to go that far, that really would implicate the Fourth Amendment” — to which my question is, okay, why? Why does that implicate the Fourth Amendment, but having an increasing number of — and let’s not just call them license plate readers, these are government information-gathering systems that are getting increasingly capable, and they’re going to get to facial recognition technology. We already have that in China, right? They’ll get there. So why not? Why would we stop at this kind of half-measure of just having cameras that can follow your car around, when in certain places we could have cameras that can follow everybody around everywhere they go in public?

Laura Bondank-Harmon: Well, I think you make a very good point, and we’re not stopping at license plate readers. I think this argument about having a reasonable expectation of privacy in public comes from a case called Knotts. In that case, the Court held that it didn’t implicate the Fourth Amendment when police put a rudimentary beeper-tracking device inside a car to help them tail it. But the Supreme Court really emphasized that this was very rudimentary technology. And I think you touched on the fact that what we’re looking at today — these devices, even the cell-site location information from the Carpenter case — we’ve come a long way since rudimentary beepers and police following cars with their own vehicles. And one of the things Justice Kagan said in her majority opinion in Chatrie this summer was that we want to prevent the government from basically obtaining a virtual panopticon in which they can track a citizen’s every movement. And your drone example is exactly that. I think we’re getting there with these license plate readers, because Flock’s systems do more than just license plate readers.

Voices from the community: They’re coming all over the country, and they’re being used to institute a surveillance state in order to control us. We’re seeing our rights being eroded as we speak. They can fund law enforcement and train law enforcement in a way that’s going to serve people, and not to bring violence and violate our civil rights. I think generally anything that increases surveillance to that extent is kind of a negative thing — it normalizes this idea that everything we’re doing is always under watch. I think it kind of takes away from the decisions we’re able to make. The fact that they were able to see exactly where I’ve been all the time, driving, at any given moment — I don’t like that at all. What’s the reason for you having to know where I’ve been and what I’ve been doing? They have drones. They have systems that work with 911, local 911 operating systems, and they can pull police records. And when worked in conjunction with video surveillance cameras from Flock, you can actually do plain-language searches based on people’s appearance.

Clark Neily: I think you made an incredibly important point that we should unpack really quickly, which is that suddenly we’re talking about technical systems that enable the government to not just know, “oh, you were probably in this state at that time” — they can know exactly where you are, what floor of a building you’re on, and in what room. And we discovered that in a big way in this case called Chatrie that came down this term in the Supreme Court, involving a technology that may actually be defunct already, but something called a geofence warrant.

Laura Bondank-Harmon: Yeah, so in Chatrie v. United States, like you said, the police had no leads, but they knew the suspect was using a cell phone. They had obtained video surveillance footage, and they were pretty confident this guy had a cell phone, and anybody with a cell phone likely has a Google account. So the police used this geofence warrant to go to Google and say, give us all the user information for anyone within this — I think it was a 100-meter circle they drew around the bank.

Clark Neily: A little bit bigger the first time, I think.

Laura Bondank-Harmon: Yeah. And it didn’t just encompass the bank — it was the church next door, it was the wooded area behind the bank. And it was a three-step process, and basically what that did was whittle down this anonymized data for anyone who was in that area during the period surrounding the robbery, until they got down to three people.

Clark Neily: Still with no names.

Laura Bondank-Harmon: Right — once they got to the three people, they said, “Okay, Google, you have to de-anonymize this now,” which meant they didn’t just get the name, they got all the user information Google has on these three people. And that was a huge concern for advocates of the Fourth Amendment. So when the Supreme Court decided to take the case and hear arguments this summer, one of the arguments the government made was that people don’t have a reasonable expectation of privacy in their Google location history, because you opt into it — when you download Google Maps, when you download Google Photos, you’re telling Google they can have this, and because you’re sharing that information, the government can get it without a warrant. And obviously the Supreme Court didn’t agree. The Court said that no, this type of information is so invasive that it amounts to too permeating a police surveillance, and so people have a reasonable expectation of privacy in this information, even though it tracks their movements in public.

Clark Neily: I think one of the things that’s interesting is that the Supreme Court seems to have a real challenge in what is the doctrinal — in other words, the legal — way to explain something we kind of all know to be true. And again, we see that in Chatrie, that a majority of justices understand there’s something very concerning and constitutionally significant about using this technology to identify anonymously large numbers of people and where they were. Because one of the things to emphasize is: they had no reasonable suspicion as to the individuals who showed up in the various data dumps that Google gave them from the geofence warrant. They’re trying to sift that information until they find somebody they can develop reasonable suspicion about.

Laura Bondank-Harmon: Right — it worked almost as a reverse warrant, in the sense that it swept in a bunch of innocent individuals in order to discover the potentially guilty one. So on some level, the justices get that there’s a problem here, but they’re having trouble articulating why it’s a Fourth Amendment problem, why it’s a constitutional problem.

Clark Neily: At the same time, it is true that you are out in public. There is, I think, a deeply embedded cultural norm that you don’t follow people around for no good reason. That’s not an okay thing to do, even if you’re not a government actor. And if you’re a government actor, then a whole different set of standards apply to you, and it should be even more rigorous.

Laura Bondank-Harmon: You know who gets real salty sometimes when they get recorded out in public and doesn’t seem to like it very much? Police officers. Could it be police officers?

Clark Neily: Yeah, you don’t have to be too proficient to go on YouTube and find an endless number of videos of police — notwithstanding the fact that people have a constitutional right to record them — telling people to back up. And it’s not “back up, you’re interfering with my ability to do my job,” it’s “back up, I don’t want you recording me.” And of course, there are some infamous videos we’ve seen of federal agents in Minneapolis, for example, literally telling people, “You don’t want to be doing this, you’re going to regret it” — by which I mean lawfully recording them in public. And I don’t think, by the way, just because police don’t like it means they have a legitimate basis for that. They signed up for a job where they do that job in public, and people have a constitutional right to monitor the way they do that job. But notwithstanding that fact, even they feel like there’s something amiss when people are following them around recording them. But then when the shoe is on the other foot, their attitude is, “Well, sure, I work for the government, and I don’t have any reasonable suspicion that you’ve done anything wrong, but I’m still going to follow you around” — in effect, virtually follow you around — just on the off chance that might help me solve a crime one day.

Laura Bondank-Harmon: A lot of your work focuses on over-criminalization, and the fact that we have so many laws on the books that it makes it hard not to commit a crime. What happens when you combine over-criminalization with a system that tracks people any time they leave their house?

Clark Neily: Yeah, I mean, look, we live in a society where credible experts have argued that the average adult has committed a felony in their lifetime, and that most people commit at least some number of criminal infractions. Maybe some of them are relatively minor misdemeanors, but that’s enough to provide law enforcement with reasonable suspicion to stop you and question you. It’s actually a pretty big deal if a police officer reasonably suspects you of having committed a crime — even the most minor crime, like in some places it’s a crime to not be wearing a seatbelt when you’re driving. That’s considered a crime, and it unlocks a whole array of powers police have, one of which would arguably be the ability to surveil you, because now they have reasonable suspicion, or to stop and question you. So essentially, if you can plausibly say that a significant number of people are likely to have recently committed, or are about to commit, a crime — which in our society is always going to be true in at least most neighborhoods — then that augments the rationale for having a pervasive surveillance system, because you are pretty likely to catch a crime on that system, or, as with the Chatrie case, to be able to go back in time and identify the perpetrator of a crime. Now, if we were just talking about really serious crimes — homicides, aggravated assaults, armed robberies, carjacking, things like that — we’d be having a different conversation. And the proponents of this technology want you to believe that’s mostly what we’re using it for. Are you mostly using it for homicides and serious assaults? We don’t really have enough data to know for sure, but my suspicion is that’s not the way it is. And if it is that way now, it’s not going to be that way for long. It won’t be very long before this technology is being used for ticky-tacky things, like somebody sold somebody else a bag of weed on the street, which is still a crime. And the concern, as I alluded to earlier, is just that when the government can reasonably suspect a significant portion of the population of having committed, or being plausibly likely to commit, a crime at some point in the near future — if that’s all it takes to use a surveillance technique like this, we’re in a lot of trouble.

Laura Bondank-Harmon: I think it’s a really dangerous sentiment, this idea of “something to hide” — that changes based on what is deemed, or systematically deemed, an offense. I also think it’s something that gets put out to justify high levels of surveillance. Most of the time, people are not really trying to hide anything — people are just trying to enjoy their lives. It’s all about how invasive the situation is. Many people who hear about the discourse surrounding these Flock cameras respond by saying something like, “Well, I’m not breaking any laws, I’m not doing anything wrong, so why should I care?” What do you think about that?

Clark Neily: Honestly, I think that’s such an infantile response. Does that mean therefore you wouldn’t have any problem if the government read every email and text exchange you have with friends and loved ones, that they have complete access to your entire browser history, or — even more relevant these days — every chat you have with an AI? Because, oh, if you’re not doing anything wrong, why should you care if the government is listening in on all of your phone calls and communications? That is so alien to not only our tradition but our actual Constitution, which was designed to ensure that people are secure in their persons and places, papers and effects, regardless of whether they’re engaging in a particular kind of conduct. Because the founders understood — what was true then and is true today — that enabling the government to have total insight into everything citizens do, whether they’re doing anything wrong or not, is a deeply sinister and easily abused form of power that is utterly inconsistent with living in a free society. One of the most basic attributes of a free society is that you are free from pervasive surveillance. You are free from a world in which the government knows exactly where you went, who you talked to, what you said, and why you were there, and doesn’t look at you and say, “Well, why would you care if you didn’t do anything wrong?” So again, I think it’s an incredibly sophomoric response to one of the most fundamental limits on government power, which is depriving the government of information it has no legitimate basis to acquire in the first place. And that’s one of the reasons, by the way, why reasonable suspicion is such a touchstone of the Fourth Amendment.

Laura Bondank-Harmon: You mentioned the importance of living in a free society. How do we maintain that while also having to deal with these problems of increased digital mass surveillance?

Clark Neily: It’s so important that we do our best to get it right, and I think right now we are not. I’d say there are at least three key points. The first is that a decision to subject a community to this kind of pervasive surveillance should be made as democratically as possible. People should have input from the beginning into that decision. That is not happening. The people who use this technology — which has such tremendous potential for abuse, and has in fact been abused already — should be highly accountable for those abuses. We know that’s not happening. As you and I discussed earlier, I’d like to see a regime in which the abuse of Flock or ALPR technology is a special kind of tort, where you automatically get punitive damages, and the company that provided that system — the private company that provided that technology to the government — is joint and severally liable for every single abuse. And if they don’t agree to that, I’d like to know why. Why wouldn’t you agree to that? That sounds like pretty good accountability to me. And one of the things you can count on, almost as the sun rises and sets, is that there will always be insufficient accountability where law enforcement is involved. And then third, that the Constitution keep up with the magnitude of the technology. Just as we discussed earlier, when police use thermal imaging, or they’re trying to search an entire smartphone, or they’re employing a technology that enables them to follow each and every one of us around without any suspicion, and know exactly where we go, who we talk to, and what we do — that should come with incredibly stringent guardrails, so that this bare-minimum requirement of reasonable, individualized suspicion is not left in the dust like some kind of relic. That should be the centerpiece of any Fourth Amendment analysis. And if the courts fail to keep up in that regard, they will be failing us all.

Laura Bondank-Harmon: Powerful words. Thanks so much for being here today, Clark. This was a very insightful conversation. And thank you for listening to this week’s episode of the Cato Weekly Podcast. If you enjoyed today’s discussion, please subscribe and leave a review wherever you get your podcasts. To learn more about the ideas and research discussed in today’s episode, visit Cato​.org. The Cato Weekly Podcast is a production of the Cato Institute, dedicated to advancing individual liberty, limited government, free markets, and peace. Join us next time for more insights and conversations on the issues shaping our world.