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Papers, Please: Transportation Surveillance
Cato Surveillance Week 2026 · October 14, 2026
Moderator: Patrick G. Eddington, Senior Fellow, Cato Institute
Panelists: Jim Harper, Nonresident Senior Fellow, American Enterprise Institute; Rachel Levinson-Waldman, Director, Liberty and National Security Program, Brennan Center for Justice; Laura Bondank-Harmon, Manager of Legal Programs, Robert A. Levy Center for Constitutional Studies, Cato Institute
Patrick G. Eddington: Well, welcome to day three of Cato Surveillance Week 2026. My name is Patrick Eddington. I’m a senior fellow here at the Cato Institute. I am joined today by three absolutely outstanding experts in this particular area. Jim Harper is currently a nonresident fellow at the American Enterprise Institute. Rachel Levinson-Waldman is the director of the Liberty and National Security Program at the Brennan Center for Justice. And my colleague Laura Bondank-Harmon is our manager of legal programs in the Robert A. Levy Center for Constitutional Studies. My thanks to all of you for carving out the time to be here today and talk about transportation related surveillance. This is one of them that I’ve wanted to kind of tackle for quite a while.
And I think it’s important that we, you know, just kind of start out with, you know, the basic question, which is there actually a so-called right to travel? Is this a constitutionally protected right at any level? And I’ll just open that up to pretty much anybody who wants to kind of kick us off with that.
Jim Harper: Well, all started out, Patrick, by recognizing that I argued for it in congressional testimony a year or two ago, if Congress in a hearing on the Quiet Skies program, which was a watch listing program that has now been shuttered, I said to senators, hey, why don’t you put in statute that there is a right to travel? That’s that would be an important voice in the debate about whether there is such a right. I recall a Supreme Court language saying that it’s a, you know, a protected liberty interest, which is a vague turn of phrase, but as often as not, any right to travel takes a back seat, pardon the pun, to security programs and security interests and courts tend to punt on what the rights are, including the maybe negative right.
That is more important, which is of course, the right against unreasonable searches and seizures. So you could post a right to travel up against programs or the more clearly established right, the Fourth Amendment, right against unconscionable against unreasonable search and seizure.
Laura Bondank-Harmon: Yeah. Sort of building upon what Jim said. The Constitution doesn’t explicitly say you have a right to travel. It’s not like the Fourth Amendment, which explicitly says you have a right to be free from unreasonable search and seizures. However, the Supreme Court has read in a right to travel between states, I believe the its most recent grounding was in the 14th Amendment Privileges or Immunities Clause. Now, not every justice agrees on sort of the scope of this. Right. But at this point, the court has said, yes, as an American, you have the right to travel from state to state. And it’s really interesting. There really hasn’t been anything litigated regarding technology and or surveillance technology in terms of the right to travel. As Jim just sort of touched upon, it really comes up in the Fourth Amendment context. Rachel.
Rachel Levinson-Waldman: Yeah, if I could just add one kind of additional piece on top. And I think to some extent this builds on what Jim was saying and obviously the topic of our panel today, which is that to so extent separate from sort of a standalone constitutional right to travel, I think increasingly what we’re seeing is that traveling entails being surveilled, right? Whether you’re on the road, whether you’re flying, increasingly, if you’re taking a train, there are so many mechanisms for kind of a combination of collection of information about people through prescreening systems, things like that for the ALPR systems and the increasing kind of data integration and analysis that’s implicated by all of those systems.
So I think increasingly when we say, is there a right to travel? Part of the question is, well, today, kind of as those data collection and analytic systems are in place. What does it look like to travel and kind of in unfettered way, or to exercise some of that right to anonymity?
Patrick G. Eddington: The whole system? I will just say whether we talk about the ground slice of this or air travel really just fundamentally strikes me much more as a population control and monitoring measure than it does anything in the realm of actual public safety. I’ve kind of felt that way for I see Jim smiling. I kind of felt that way for a long time. And it was actually when I first got to Cato, it was actually Jim who was the one who informed me, hey, what are you going to? I think you said something in the effect of, hey, what are you going to do about these checkpoints?
And I was like, oh, what checkpoints in America? And so that led me to create this online system that we have now, this online project called, the Constitution Free Zone Checkpoint America, which you can find on the Cato website. And I just want to quickly plug that and also just let people know that. And you probably won’t be surprised to hear this, that our friends at DHS and specifically Customs and Border Protection. They are currently our longest running Freedom of Information Act lawsuit, because they have provided a redacted page after redacted page. And I’m talking about hundreds, and it may even be thousands of pages now where when it comes to these checkpoints in their locations, they are blacking out the box where it tells you what the location of it is.
Now, I built this online project using Google Earth and Google Street View. So we kind of know where they’re at. But this is the mentality that we’re kind of encountering here in terms of even getting information on some of this stuff and that recalcitrance, from what I’ve seen at least, is absolutely applying in many cases with respect to these automated license plate readers or ALPRs, and other systems that essentially that are being used right now. So I to that end, I want to, you know, begin kind of diving in on the whole ground travel thing. My guess is that anybody is tuned in to this particular program, has probably heard about flight cameras. So I want to take a big dive on that. But Jim, I think you’ve got something to add here.
Jim Harper: Yeah. And I can get us there maybe a long way. I’m glad if a sidelong comment I gave to you had influence on you. That’s terrific. Good news. You’ve done great work there at Cato. And appreciate all you do. But I don’t know if. I don’t know if I if the starting point for me is like surveillance and control. I did a bunch of research on license plates, license, driver’s licenses, but also license plates and licensing of cars. Originated as a taxation measure. Who had cars? The rich people, plunked down a plunk down a requirement that they chip in a dollar or $2, which was big money.
In the 19 tens and 1920s, whenever the first cards cars were getting out on the first roads. So licensing was basically a way to stop rich people. Of course, there’s a valid need for traffic safety and being able to like, report which car it was that sideswiped the hedge and so on and so forth. So you get this sort of utterly normal, boring, mundane thing called the license plate. And their unique within states. And each license states license is unique as to the others in their design. And so all of a sudden technology springs up and pivots this whole, this utterly mundane metal rectangle and turns it into an identifier that, by almost direct implication, tells you who’s gone where.
And so I’m proud to say, or maybe embarrassed to be bragging this way. 25 years ago, asked to testify in the transportation committee in the House about red light cameras. I said the day is not too far off when, optical character recognition built into these cameras tells you where everyone has gone. Now, I was a little I was a little early saying it’s not too far off, but it is 25 years later and it’s here now and it’s quite comprehensive. And you see the, you know, the videos are coming out of where police are saying, oh, I’m curious about that person, and they know where they’ve been all over the country.
Even so, it’s a shocking development. It’s fascinating how technology can change the ground underneath our feet. And we’ve got a big debate on Flock cameras now. So I’d love to hear from the true experts, Laura and Rachel on where it’s at and what’s going to happen.
Laura Bondank-Harmon: Yeah. So I guess I’ll jump in. So as I know, everybody on this panel knows Flock is not actually they’re commonly called Flock cameras, but these things are actually known as automated license plate readers or ALPRs. Flock is the leading manufacturer of these devices, but they’re not the only manufacturer. And so, everybody keeps seeing Flock cameras in the news. But it’s important to know that Flock isn’t the only maker of these things. And I think one thing that’s important to understand is how these devices operate differently from your run of the mill traffic camera, or like a CCTV camera on a public building. These Flock cameras, all feed into one centralized database that’s accessible to any jurisdiction with a Flock contract, essentially.
So what that means is your vehicle gets captured by a Flock camera in Arlington, Virginia. Well, if Arlington has a data sharing agreement with Flock, which they like, they likely do. Are a police officer with a Flock contract whose department has a Flock contract in Chicago, Illinois can look at where your license plate has been in Arlington, where your car has driven in Arlington. And what that means is it’s virtually impossible to travel anywhere without being tracked. And what’s more, these databases are retroactive. There’s been a lot of discussion, among the states and in cities about how long data should be retained. But before those discussions were happening, there was really no limit on how long this information could be retained.
And what that means is there was nothing stopping the government from going back and seeing who went to this doctor’s office, who went to this church, who went to this protest or political rally, and then following you, learning your habits, learning your associates, learning who you associate with. And I think that’s the big problem. That’s the scary thing that’s making people concerned about their privacy and concerned about the government constantly watching them when they leave their homes.
Rachel Levinson-Waldman: And I could just yeah, add on to a little bit because I think all of that is right on. And then I think an additional piece that sort of comes from this data sharing aspect. Right? So one of the things that Flock specifically has said, right, is that the federal government doesn’t have access to its technologies, right, that it’s state and local government. But there are really major workarounds to that that we are seeing probably almost every day in the news. Right. One is the ability just for federal agents to go directly to their state and local counterparts and say, can you search this for me? 404 Media has done reporting on this other outlet showing how common that is.
And it’s become kind of a backdoor pipeline largely for immigration agents. Right. We’re talking about ICE, HSI agents who are getting information this way in a way that that both allows these companies to say that they’re not sharing information and often just to be very opaque. It’s not covered by some kind of memorandum of agreement that would be discoverable or that you would get via a request. Right. So there’s sort of, I think, layers of opacity to that. There’s also been some reporting actually, again, from 404 Media about agreements that jurisdictions are required to sign when they sign up for Flock and presumably other. So Axon, right, is one of the other big players in this space, Axon is sort of now making a name for itself by saying, oh, our cameras aren’t interconnected the way flocks are.
There more controls on them. I think there’s a lot that we can get into about how all of these systems are working, and sort of the additional kind of technological capacities that are being layered on top. But just on this data sharing piece, there’s reporting suggesting that when jurisdictions are signing agreements with Flock, they’re being required by the federal government also to sign a data sharing agreement under something called the High Intensity Drug Program. I’m forgetting what the A is for. But again, it’s kind of this backdoor method of forcing information sharing that I think probably a lot of advocates and individual cities aren’t even aware that even if they’re saying to a city council, you need to stop this, there are these separate agreements that basically they’re being forced into.
Patrick G. Eddington: Do we have any evidence that the state level fusion centers are acting essentially as conduits for this stuff as well?
Rachel Levinson-Waldman: That’s a good question. I don’t know if there’s evidence on that so far. I mean, certainly what fusion centers exist for, right, is to be side by side information sharing, right to bring federal, state, local agencies into one place and to add on kind of a private layer. Right. So usually, you know, the biggest employers in a city, and those employers also are typically owners of license plate cameras. Right. So there’s been a lot of coverage around, you know, Home Depot has license plate readers, you know, kind of any big business or big mall is likely to have license plate readers. That has also raised a lot of transparency issues in terms of how to actually get that information.
And those representatives kind of if they’re, you know, if they’re significant in region, they might also have people sitting in a fusion center. So it certainly would not be surprising if fusion centers are effectively acting as a conduit.
Patrick G. Eddington: And it’s my understanding and correct me if I’m wrong, but at least with respect to Flock, it’s not just the cameras that they offer to people. If I recall correctly, there’s a drone component to this and some other things that that go along with the package deal, if you will. Can we educate our audience on that a little bit? Do we have some detail on that.
Laura Bondank-Harmon: Yeah. So I know I’m familiar. And again, as Rachel was saying, 404 Media is great at reporting on this stuff. This is actually how I learned about some of the interconnected devices that Flock offers. So one of them is, you know, standard surveillance cameras. But when operated in conjunction with ALPRs, you can you have access to a program called Flock Free Form. I think it’s called Freeform Search. And so that is a plain language search program where you’re not typing in the exact license plate you’re searching or anything. You’re searching it, you’re searching a description of a vehicle. But when these devices are used in conjunction with the surveillance cameras, it actually enables free form searches of people.
So you can search for people based on descriptions, not just cars. And that’s because surveillance cameras take video footage, and it allows you to search the video footage for people. In addition to the still images captured by ALPRs. And they also work. Oh, sorry. I saw Rachel was about to say something.
Rachel Levinson-Waldman: I’m sorry. Keep going.
Laura Bondank-Harmon: Yeah, I was just going to say they’ve also started rolling out drones and drones as first responder programs, which have been around for a long time. But again, it’s just another added layer of surveillance that when you leave your house being washed is inescapable.
Rachel Levinson-Waldman: Yeah, I was just going to say I mean, I think the point that Laura is making was so important that Flock has basically said that you can use its tools to jump from the car to the person, right, that they’re making that very explicit. And then one of the other pieces is that not through the cameras themselves, but through additional capabilities that Flock is offering. There’s something called Flock Nova that either has already rolled out or is going to be rolling out, kind of interoperability with commercially available data. And as you know, obviously everyone on this panel is aware and maybe a lot of our viewers as well, that really opens up the Pandora’s box because of the range and quantity, just the vast volumes of commercial data that are available, just sheer for sheer purchase.
And kind of adding on to Laura’s point about, you know, being able to make determinations about, you know, patterns of someone travels, someone’s travel, their associates, you know, their access to, you know, sensitive medical care, their political activity. All of that is available at scale and commercial data. So when you’re combining these capabilities, it is really supercharged. And tomorrow for the event on commercially available data. Am I right Patrick.
Patrick G. Eddington: Yes. Thanks. Thanks for the plug. Thanks for the plug on that. In the chatter that we had before we went live, I think it was. Was it Rachel or Laura or both of you? Made note of the fact that Jim’s current state of residence in New Hampshire apparently has a relatively interesting limit, essentially, on how long that data can be retained, at least in that particular in that particular state. What is that limit?
Laura Bondank-Harmon: Yeah. So part of the public discourse going on around Flock cameras right now is how long can the data be stored and accessed by the government. And so a lot of states have been implementing retention policies. So basically limits on how long this information can be kept. And New Hampshire is really ahead of the curve. So I would say from what I could tell, a lot of states hover around somewhere between like 30 days with 90 days. I know Utah has a 90 day retention cap that’s usually on the longer end. But New Hampshire’s is three minutes, and I’m not completely clear on how that’s supposed to work, but I was so interested by the fact that they put a three minute retention policy on there. And basically if the officers don’t flag that data as a as necessary or as, you know, relevant to some ongoing investigation, it has to be deleted within three minutes of capture.
Patrick G. Eddington: Do we have any idea?
Rachel Levinson-Waldman: Right. I was just going to say my speculation on that is that it’s hot list really dated, right. So New Hampshire. You know, have a hot list of okay, these are cars, you know, registered to people who have outstanding warrants. These are Amber Alerts. These are Silver Alerts. Right. What’s the sort of highest level of we would need to know immediately if this car is one that we need to follow for some reason where there’s an arrest warrant out, and if not, then poof, right. It’s just not being saved to sort of create that time machine capability.
Patrick G. Eddington: And is there any kind of actual independent back in order that actually confirms that? I’m going to bring up this whole how do we confirm this business kind of angle as we go forward? I’m going to talk about that in relation to Quiet Skies, Jim. Here a little bit, but do we know is at least in New Hampshire, is there like a back end audit that says, yeah, they deleted it.
Jim Harper: I don’t know of one. And that’s the sort of perennial problem with technology systems is that you set a policy. And then how do you know whether the policy is actually being carried out? I mean, I spent a lot of time on what I call strip search machines. The things that cause you to stand like this in a device goes around you. There’s some cult. I think Senator Rand Paul calls it a whirligig machine. And the original setup was that it made an image of your body that’s, you know, looked a little like an X‑ray, but an X‑ray of that doesn’t go to your bones, but just past your clothes.
And someone sitting in a booth over there was looking at these images of everybody’s bodies. That was especially objectionable. Now, the technology renders of a, you know, a sort of anodyne outline of the body. But how do you know that it’s not still creating those images and warehousing them so that when the movie star goes through the, you know, some someone over there is going, oh, let’s save that one. Because, you know, I really love his movies or whatever the case may be the way. And maybe I’ll just go right into Quiet Skies. I think the way that these things are found out currently, which is entirely unsatisfactory, is that somebody on the inside, squeals or a hacker breaks in and finds out that the policy as advertised is not being carried out.
The only real solution, and this is at a very high level of abstraction and broad brush is, you know, open systems where the software itself is subject to public auditing. And so you can tell that the system actually works as advertised. So I know you know, Patrick, you work so hard on FOIA stuff to find out if this thing you said is happening is actually happening. And I don’t think there’s really any obvious, better way than follow and squeal squealer whistleblowers. I think it’s a better way of putting it and hackers to reveal where the programs are not being carried out consistent with policy
Patrick G. Eddington: And for the benefit of our viewers, who may not be completely clued in on what Quiet Skies was and may still be, for all we know. This was basically a two part program that was initiated well over a decade ago. The front end of it, is the Quiet Skies component. This is air travel related, and Quiet Skies was the domestic side of this. This is what former Director of National Intelligence Tulsi Gabbard absolutely railed about, which is why then DHS Secretary Kristi Noem allegedly shut down the Quiet Skies program. But this was really extensively covered heavily by the Boston Globe beginning in about 2018. Some of the best investigative reporting that the globe has certainly done in the last, you know, 10 or 15 years easily.
But the U.S. to foreign component of this is called Silent Partner, and that is the one that was also featured in these Boston Globe pieces. And I think I’ve seen some info elsewhere, but in many cases, based at least on what I’ve seen, there was actually no criminal predicate for engaging in this surveillance against people that were engaged in, you know, just kind of ordinary travel. And you know, what? I what I think is still a major problem here is that even now, we still have no idea whether or not number one, Quiet Skies was actually truly shut down. We have no idea what the status of Silent Partner is.
And so this is another aspect of this airline surveillance and this overarching kind of surveillance architecture that’s being built in this country. And at least it seems to me. And if folks disagree, please speak up. Or if you agree, speak up. It just seems to me that this is the kind of thing that really ought to be a top five issue for the 120th Congress. You know, when it gets back into session, because a lot of the things that we’re talking about now, one way or another, we can basically connect directly back to the post‑9/11 environment. Right? A lot of the major surveillance programs, you know, that I’ve spent a lot of time on, obviously, the FISA Title VII program, the Patriot Act, all these things, so much of it now is in concrete, right?
When the Patriot Act was first passed, if I recall, there were over a dozen provisions that literally had sunsets. They had expiration dates attached to them. They’re all permanent now, with the exception of the three that were actually allowed to lapse, which apparently were never of any actual real surveillance or intelligence use, which comes as no great shock to me. But that is the way that the surveillance state essentially has been ratcheted up in the post‑9/11 era. And you know what? I’d like for all of you to kind of help us understand is what are the chances that this, you know, ground surveillance part of this and the air surveillance part of it, the Jim and I have now been talking about a little bit.
What are the chances that that basically becomes no different than all this Patriot Act related stuff and FISA-related stuff that just becomes a permanent part of our landscape. In other words, is there a is there a reason to believe on the basis of what we’ve seen so far in terms of advocacy by organizations, you know, like the Brennan Center, ACLU and Cato is not technically an advocacy organization. But we certainly try to make the point about these things. You know, do we have any chance of rolling this stuff back? I guess that’s like my big takeaway question here. I’ll just open that up to anybody.
Jim Harper: I have the answer you might not expect to hear, but things are getting better Patrick. Honest they are. But I’m actually I want to talk about these because I’m interested in how they come about and how we can get more of them. The DHS under secretary Norm got rid of the take your shoes off requirement, kind of quietly. They didn’t do it silently. They announced it and they got rid of it. Took something like two decades for that, you know, dumb reactive policy that never saved a life, much less saved anyone from injury. That dumb reactive policy took 20 years to get rid of and it did go away.
Kudos to what you know, whatever. Whatever’s in the water in the Trump administration, some kind of machismo among men and women alike allowed that the administration to get rid of that rule. Similarly, there’s a program underway that’s going to allow, people who are not traveling to enter the secure area at airports to see their loved ones off. I’ve got the I can prove, you know, just looking at me proves I’m an old guy. I remember doing that when I was a kid, going to meet grandma at the airport where she got off the plane and then. And walking with her, walking with her back to the car.
The liquids rule has been talked about, and I think the liquids rule, actually, is kind of honored in the breach. Obviously, you bring a big bottle, they’re going to throw it away. But are people asking you know, hey, that has to be in a clear plastic bag and that contains that toothpaste tube that’s entirely flat except for little and could hold more than three ounces. So that’s going in the trash. Know the sort of natural risk management is occurring where the liquids rule is kind of under control. It could probably go away ultimately, too, because it was based on a talk of an attempt that almost certainly would fail because you cannot create this explosive called tap in a bathroom.
You know, I on a plane, there’s a comedian, Nate Bargatze, who’s kind of his shtick is kind of to be a homespun dumb guy from Tennessee, if I’m not mistaken. And he’s joking about airline travel because apparently his, Delta thinks his name is Nathan and his driver’s license, says Nathaniel. So when he’s going to put when he’s going to put luggage, you know, on the plane, the guy just says, just go home. You can’t you’re not gonna. And don’t tell him that he actually goes by Nate. So like the public is made the public can handle this. People are making fun of it. And, you know, so what this is what’s interesting to me.
What changes what happens, how do the stars line up so that programs that don’t cost effectively secure can go away? It does happen. These are small examples. Meanwhile we’re getting like huge problems like Flock cameras. But there’s obviously a lot of public pushback on Flock cameras. So we’re not done for. And that is an ideological commitment of mine that may not have no basis in fact.
Rachel Levinson-Waldman: To kind of add on to that. Right. The point that Jim was making, there has been a lot of pushback against cameras. I think it’s really important here. And it points to one of the important distinctions, I think, between the difficulty of making movement on these at the federal level. I mean, Patrick, you were talking before about the Patriot Act because we all know the Patriot Act basically was a wish list, right? That had been sort of, you know, it had been compiled over a number of years, and then 9/11 happened, and it was sort of the time to say, great, now we have an opportunity, right, to sort of roll out these programs because now there’s a hook for it.
Yeah. I think the fact that the cameras are on the local and state level kind of notwithstanding the federal sharing we’re talking about, although I think that federal sharing also is part of the reason that there has been so much concern about it. I think as people see kind of what ICE agents are doing in the street are seeing these very tangible impacts of federal government overreach and are seeing the ways that that is kind of amplified or enabled in some ways by this data sharing from the state and local level. There’s there are also many more opportunities to push back. Right. People don’t have to show up on the hill.
They don’t have to figure out how to place a call to their, you know, representative or senator, and where is that going to go? They can go to a city council meeting. They can get themselves involved in pushing back on the purchase of a contract. So we’ve seen in a bunch of cities, right in Austin, Texas, there is a movement that forced the city to cancel an ALPR contract using the procurement power. Cambridge, Massachusetts terminated its contract. There really kind of all over the country. There are some organizations. DeFlock is probably one of the major ones. ACLU is tracking this as well. Right. And it’s really showing this kind of upsurge across the country.
And I think the other piece and this is by no means perfect, but I was thinking about your question about kind of auditing and oversight, but I think on a national level, especially thinking about DHS, it’s really imperfect on the front end. If they’re willing out a policy or especially rolling out some kind of new data collection or use. Right, there’s going to be a privacy impact assessment. There will be before that, a privacy threshold analysis. There might be a privacy compliance review. There might be a data mining report. As any of us who have spent time, probably too much time with those governments documents, with those government documents.
No, they are not perfect. They do not always make it easy to find out what’s going on. But they’re kind of is that process. But what’s lacking often is the back end, right? Unless there’s a GAO report or an inspector general report or some kind of congressional inquiry, there’s not a lot of sort of routinized follow up on the local or state level, depending on where you are and depending on what the advocacy has been. Sometimes there is more of that. Right? And there’s been a real push to get regular reporting out from cities about their use of surveillance technologies. And so I think and again, they’re not perfect, but it is a mechanism that I think you don’t see as much on the federal level. And so that’s also a way in a perfect world to get some ongoing accountability and also leverage to say, hey, we don’t actually like the way this technology is being used.
Laura Bondank-Harmon: Yeah. I would just add that I think it’s a good thing that people are talking about Flock cameras, because I think that if we don’t at the government’s going to take whatever power we allow them to take, right? So if people are complacent and are allowing the government to surveil them constantly, the government is going to do it, you know, like and it’s going to be really hard to claw that back. Like Jim was just saying and like Rachel was just saying, you know, when people start talking about it and when communities get involved, you know, maybe we’re able to roll back 1 or 2, you know, provisions or regulations or whatever.
But like the rule that made you have to take your shoes off, you know, but that took 25 years. And that’s just one part of the larger problem. You know, we passed the Patriot Act and there are all of these requirements. Now the government gets to do all of these things, their power to severe people, you know, it just it’s so much larger than it was pretty 911. And so if we continue to allow the government to act in this way, they’re going to do it. And it’s really hard to get those that those it’s hard to get privacy and, you know, protect the individual liberties. Once we’ve kind of given the government free rein to just do what they want.
Patrick G. Eddington: Well, I appreciate, Rachel making the 10th Amendment argument for me because, it would seem, at least with respect to the whole camera controversy. ALPRs. And like that federalism may be one pathway that actually helps us, you know, kind of begin to break this stranglehold. Jim, you had something
Jim Harper: I want to I see it’s kind of hierarchy. And we’ve covered two out of three like public response to Flock cameras also hopefully sort of continued antipathy to the TSA. We talked some statutory, but let’s also do constitutional. Like I want to share some of my thinking on it. Because I’ve been thinking for a long time, how do you there are some there’s some difficult problems in Fourth Amendment application to technology that I’ve been thinking about for a good while. And the Flock camera debate is a good time to advertise them. I’m a I don’t how shall I put this I kind of hate the reasonable expectation of privacy test.
It’s a catch all and you can do a lot of good things with it, but you can also do a lot of bad things with it. You can throw a lot of a lot of people’s rights away just because you are a judge and you think that this is how everyone should see it, that doesn’t work for me. So I’ve been working for a long time on how to get a more textual application of the Fourth Amendment. And that requires you to ask, what is seizing? Let’s identify seizing articulately. Let’s identify searching articulately. And that is where I think the Fourth Amendment can cover DNA, for example, facial recognition and Flock cameras when.
That’s published, that’s available to anybody. I don’t think there’s any really good rule that nobody should be allowed to photograph, even comprehensively or videotape what they see outside on public roadways. But when that’s processed to draw out identifiers such as license plates, but also distinct identifiers of cars or of people, that processing, I think, is an essential constituent of searching. Searching is a is an ordinary word. It hasn’t gotten a lot of explication in court cases, but it’s a word that existed at the time of the framing. It meant, you know, directed examination of something with a purpose of finding something. Courts could administer the search concept in the Fourth Amendment by asking, is the government or vendors working for the government, conducting activities that has a purpose, that have a purpose of finding something?
And I think with the processing of publicly gathered imagery to make it amenable to finding what you’re going to decide to look for later, I think that’s a search. And I’d like to get more people thinking in those terms and maybe, even maybe even applying that way of talking about search. There are cases that rely on the reasonable expectation of privacy test. Obviously, Carpenter mostly relied on that, the which was the cell phone location. We should talk about Chatrie, of course, because that’s a travel privacy case, right. It’s Google data about your comings and goings that the government is accessing or in order to search and then find who they think is their suspect.
And Smith, of course, which is not Smith. That’s 76, the drug dealer in D.C., who they attach a GPS device to his car. Yes. Jones. Yes. Smith. Jones. The generic names. These are the attachment of a GPS device to a car was in Justice Scalia’s opinion, essentially he didn’t say it clearly enough. Sorry, but that was essentially a small seizure of the car, making it turning it to the government’s use by attaching a GPS device to it for tracking the other major opinion by Alito, if I recall, wanted to use reasonable expectations. You can get a lot you can go a lot of places with reasonable expectations.
But let’s talk about searching. And I think you could do both with ALPR systems. They are an ongoing search for everyone. And the exact person searched for is to be decided later. We should also talk about the Beautiful Struggle case, I think to inform watchers and listeners about the case in Baltimore, where, you know, this cool tech was out there and there were flying planes, most of the time on most days that were gathering, you know, very high resolution imagery of the streets of Baltimore. And it was like TiVo for a city who could go back in time and see what had happened. So when something had happened, you could fall over around, if I recall correctly, and I’m happy to be corrected.
The Fourth Amendment, the Fourth Circuit found that that, that the collection of that data and the holding of it violated a reasonable expectation of privacy. So good for the use of that test there. But I think recognizing that that behavior as an essential constituent of searching will also help. Because textual is a is an ascendant, a judicial philosophy. And we kind of need it, I think, in the Fourth Amendment and or to have a more reliable Fourth Amendment.
Patrick G. Eddington: And I would be remiss if I did not point out, that the Baltimore case with the wide-area motion imagery, or WAMI, it’s also referred to as full motion video. That technology was battlefield tested originally during the Iraq War. This is how it came to be, and as an intelligence. You know, tool for trying to figure out, you know, where the IED manufacturing facility was. You know, in a battlefield context, as far as I’m concerned, as a former intelligence officer. Yeah, that makes sense. But in a domestic context, when you’re talking about people engaged in First Amendment protected activity, the notion that the government should be able to go and put a bird up, and with all kinds of sensors on it, including WAMI and record everything that’s been going on, and then be able to just reel it back and say, oh yeah, let’s follow this one.
Let’s follow that one. They went there and they went there. That to me, especially when we’re talking about folks that are engaged in protest, that is an absolute dagger in the First Amendment and free association concept, at least as far as I’m concerned.
Rachel Levinson-Waldman: Well, and that feels so telling that the technology was developed for a foreign battlefield, because that’s such a consistent strand right through whether it’s surveillance technologies themselves that are developed abroad and then brought domestically that are justified right through sort of a counterterrorism lens. That was true, I think, for cell site location as well. Right. And sort of the idea was we need it here as a counterterrorism tool. In fact, they used mostly in the war on drugs. Right. And that’s what you see over and over again, that there’s a justification that raises national security or homeland security concerns. And then by and large, it plays out in the context of day to day policing.
Patrick G. Eddington: And I also think that I would be remiss, as moderator if I did not bring the Supreme Court’s decision in the Slaughter case to bear here. Because in a surveillance context, in the surveillance oversight context, that decision has essentially ensured that the Privacy and Civil Liberties Oversight Board, which is a creation of Congress and never really, truly independent because it rested within the executive branch. So I have mixed feelings. I’ve always had mixed feelings about the PCLOB. But in any event, the PCLOB certainly did valuable work. Extremely valuable work, at least on the Section 702 and related Title VII programs. And so that’s gone. And then the additional assaults that we’ve seen on the inspectors general at the federal level.
Again, this is a creation of Congress through the 1978 Inspector General Act. A number of those inspectors general have played a very important role in looking at essentially a lot of these federal surveillance programs, primarily electronic surveillance, but not exclusively. And now those are under threat. So I’ve been telling people for years that I feel like Congress needs to get back to a place where GAO really becomes its primary instrument. Having said that, we now have multiple documented examples this year alone of GAO attempting to get data out of the executive branch, in this case OPM and some others, and literally being stiff armed, I mean, people over there refusing to even meet with investigators.
So that’s why this crisis at the federal level with this stuff, this oversight crisis, as I refer to it, that really has me concerned. What I’ve heard so far today about what’s going on at the state level at least gives me some hope. It gives and I hope it gives our viewers some hope that this stuff can actually be tackled successfully. It can actually be rolled back.
Rachel Levinson-Waldman: I just say briefly, any inspector general fund, I’ll put in a brief pitch for a piece that we published about a month ago that was written by the former inspector general for DHS, John Roth published a piece that’s on the center website with his thoughts about inspector general reform and ways to make that function more robust, and basically saying both that it has been significantly undercut, especially in this administration, by sort of the attack on independent oversight, but that there are ways in which it never operated perfectly. There have been weaknesses in the system and the way that those powers have been exercised for a long time.
And so he makes a variety of recommendations that I think probably would help shore it up. On the flip side, just to your point about the PCLOB, I mean, it wasn’t just Section 702, right? They did watch list oversight. They were supposed to be doing an investigation on. I mean, this is very much, I think, to Jim’s heart on his on passenger name records. They were supposed to be doing an investigation on TTRTs on terrorism task forces, or the tactical terrorism response teams that CBP fields at the border, that, it seems primarily have been used to investigate American citizens. And so I think, unfortunately, we are losing a lot of oversight and expertise with the real kneecapping of PCLOB. You know, Jim, go ahead.
Jim Harper: Well, I was just going to say that, you know, I find myself trying to figure out what works, what is possible. You know, what makes it possible to change things. And I’m, you know, so I was talking about these examples of where we’ve had some small good moves and I’m remembering I put out a piece with Jeff Jonas in 2006 on the utility or disability of data mining for finding terrorists. And we wrote the paper as we did and oriented the paper as we did, because we didn’t think we were going to be able to change the public debate very much. Five years after the September 11th, 2001 attacks, nobody’s going to say, oh, yeah, let’s just not, you know, let’s just give up on that.
Our emphasis was that it doesn’t work so that the people on the inside who were deciding whether or not to focus on this, whether or not to put more into it, would be, would think to themselves, it’s going to be a waste of our time. And, you know, happily in that area, the honest and true, I think argument is that it’s a waste of time to try to catch terrorists with data mining. But, you know, I’m always sort of searching and I guess by talking about the Fourth Amendment in the courts, I mean, there’s a book out called The Last Branch Standing, I think because there’s a lot of reason to lack confidence in the Congress, certainly as an oversight entity.
And if the administration isn’t cooperating with inspectors general and internal oversight functions and so on and so forth. That’s got me cheating over in the direction of the courts because over time, maybe they’ll see things that maybe they’ll see clear to recognize Fourth Amendment issues here. It’s early, certainly early days. And the courts move slowly. But yeah.
Patrick G. Eddington: Well, and that’s a great segue for me to go to Laura because, you know, one of the things that I wanted to bring up was this trifecta of cases. Jones we get Carpenter and now we have Chatrie. Laura give us the quick and dirty on Chatrie, Cato’s involvement, all that good stuff. So our viewers kind of have a sense of the table being set here.
Laura Bondank-Harmon: Yeah of course. So United States v. Chatrie was a case that was just decided by the Supreme Court this past term. So it came out this summer. And I would say it’s one of the biggest Fourth Amendment cases we’ve seen in a long time. Excuse me, especially when it comes to the Fourth Amendment and surveillance technology. So really the most the biggest case prior to was a 2018 case called Carpenter. Now, there were a couple of cases leading up to that. You mentioned one Jones. There was another one called Kyllo involving the use of a thermal imager. But Carpenter in 2018 was really the first case where we had this issue with digital records.
Right. And that’s because of something called the third party doctrine. So when the court created the reasonable expectation of privacy test with Katz v. United States, and I think Jim sort of touched on this, that’s the test that the court predominantly uses to determine whether something is a search within the meaning of the Fourth Amendment. And they do that by looking at both what society objectively considers reasonable and then what you suggest to consider reasonable. And what actually ends up happening is courts engage in a lot of, you know, they use there’s a lot of discretion that courts have to determine what is and isn’t reasonable.
And so we get a lot of inconsistent answers among the lower courts. And it can be really hard to figure out when someone does or doesn’t have a reasonable expectation of privacy and something. But in the years after Katz, there were a lot of cases that the Supreme Court decided that sort of limited the reach of reasonable expectation of privacy. And two of those cases are called Smith and Miller. And in those cases, the court established a doctrine called the third party doctrine. And in those cases, the court held that you do not have a reasonable expectation of privacy and therefore don’t have a Fourth Amendment interest in information that you voluntarily convey to a third party.
So in those cases, in one of the cases, it involved bank records. So you don’t have a reasonable expectation of privacy in your bank records because you’re voluntarily giving your information to the bank. And same thing goes for the other case, which involved telephone records. So it was when, you know, operators still use switchboards. And the telephone company had a record of every call you made. Well, the Supreme Court held you have no reasonable expectation of privacy in those records because you’re voluntarily conveying that information to the company, the phone company. And so those cases are still good law. And the third party doctrine has sort of carried through for decades into Fourth Amendment jurisprudence.
And it’s become really problematic in the age of digital technology where we carry cell phones around, we use apps, we use online services. You’re constantly conveying information to a third party. And so this really came to a head in the 2018 Carpenter decision, in which the court had to decide whether the Fourth Amendment protected cell phone location information. So tower pings. So when your cell phone picks up on or pings to a cell tower, can the government get that information without a warrant and lower courts, a lot of lower courts applied. Supreme court precedent, applied the third party doctrine and said, yes, because you’re voluntarily conveying your information by carrying your cell phone and pinging off that tower.
No warrants needed. Well, the Supreme Court actually disagreed with that. So although they have not overturned or they have not overruled the third party doctrine cases quite yet, they had they refused to extend it to sell site location information in the Carpenter case, holding that it would give the government near-perfect surveillance. You really can’t function in today’s society without carrying around a cell phone. Therefore, this sweeps in everybody, regardless of whether they’re implicated in a crime. And it allows the government to, you know, retroactively figure out where you’ve been, what you’ve been doing. And this past term, the court sort of carried that logic through, in its opinion, in United States v. Chatrie.
And so that case was a little different because it involves something called a geofence warrant. And I like to think of a geofence warrant as sort of an invisible circle or an invisible boundary that the government draws around a place where they know a crime occurred, they just don’t know who did it. And so it sort of operates in reverse from a traditional warrant. And so it gives a time and a place and then allows the government to figure out who was in that place at that time to sort of narrow down their suspect list. And so what happened in the Chatrie case is police went to Google with this geofence warrant and said, we want to know which Google users were in this area where this bank robbery occurred.
At the time of the robbery, it was actually a much it was a larger window. But, at around the time of the robbery and then we’ll come back to you. And get progressively more information as we sort of whittle it down. And they did this in three steps until they pretty much decided that it was Chatrie who robbed the bank. And so this question made its way up to the Supreme Court. And there were two main issues. One is this geofence warrant permissible? The court didn’t answer that question. But the second bigger question that they did ask was, does this even implicate the Fourth Amendment at all?
Because people affirmatively opt into Google location sharing when they use Google’s apps. So that’s when you download something like Google Maps or Google Photos. Everybody with a cell phone has been prompted before. Would you like to share your location? Most people click yes because the apps don’t work the way they’re supposed to work. If you click no, you can’t use Google Maps if you don’t share your location. But the government argued that by clicking yes, you are voluntarily conveying your location information and therefore third party doctrine kicks in. Government doesn’t need a warrant. Well, like in Carpenter, the Supreme Court in Chatrie held that that’s not the case.
They applied the reasonable expectation of privacy test, and they held that you do have a reasonable expectation of privacy in your cell phone location history. And in doing so, I think they really brought the Fourth Amendment into the digital age in a way that they didn’t really do in Carpenter, because they did cabin they’re holding in Carpenter to just CSL. I now, I know this is a very long winded answer, but I sort of want to touch back on something Ginn said about the tests that the Supreme Court uses to get to this answer of. Does this implicate the Fourth Amendment? Before I think the court was much more divided about what approach to use in Jones, which was the case from 2012 where police put a GPS tracker on a car.
Scalia wrote the majority opinion, and in doing so, he actually revived a pre-cast era test called the trespass test or the physical intrusion test, and held that it doesn’t matter if you have a reasonable expectation of privacy, because if the government physically intrudes onto your property, they violate your Fourth Amendment rights. And in Carpenter, Justice Gorsuch, sort of he wrote a decent in Carpenter in which he sort of proposed this new test that’s very similar to something Jim was talking about. This. It starts with the text, right? It starts with did a search occur? And if so, then you move on to determining whether it’s something that the Fourth Amendment protects by looking at, you know, sources of the law, like positive law and general law.
And that’s sort of the idea that that’s the test that Cato supported in our amicus brief. We wanted the court to also abandon the reasonable expectation of privacy test just because it’s become a mess, not only because of the third party doctrine. There are a bunch of other, you know, exceptions that make something that would be a search in the normal use of the word, not a search. And I think Jim can talk about that at length. But a carpenter, it seemed like the court might be more open to something. And especially it seems like the court might be open to adopting a test or an alternative test and maybe moving away from reasonable expectation of privacy. But I think we had a lot more justices sort of endorsed the reasonable expectation of privacy test in Chatrie. So I don’t know. I think that’s going to be the test moving forward.
Jim Harper: I’ll say that I agree that Chatrie was probably a reversion to the mean, on what the constitutional test is. Justice Gorsuch again talked about a different way of doing things in Chatrie. He curiously didn’t use the word bailment, which is the obscure property law term for when you, give something of yours to someone else to hold for you. You give them possession, but ownership remains with you. I’ll just highlight and we can. This is a sort of federalism theme. There is in New Hampshire, and I’m confident will be springing up in other states legislation to recognize in state property law, which is where property law lives.
The idea of bailment of personal information. So when you, you know, send a text message. Well, that’s not Verizon’s text message, is it. When you send a Gmail that’s not Google’s email, is it. You know, it’s still yours. And there’s a let me see if I can do that. Recall the name of the bill in New Hampshire. I know it’ll be introduced in early reintroduced in early November, the Common Law Privacy and Consumer Protection Act. I think it will probably show up in other states. And there’s an organization called the Ludlow Institute that is, it looks like it’s confidently going to push this legislation nationally.
They have a site up called MyInformationIsMyProperty.com that articulates how this legislation works and what it does. So that, I mean, so we’ve heard a lot of different I think it’s interesting to you know, it all fits under the transportation. But these are lots of different issues. Publicly displayed information requirement to put a an identifier on your car. And then it’s collected out there in public. This a carpenter and Chatrie. Both deal with information collected by third party service providers and then accessed by the government. So there’s a lot lots of different problems here. And so lots of different solutions. And I think among them is the growing belief in states that is consistent with people’s intuitions, that their private information is literally theirs and it’s theirs in property law terms as well.
I have an article in the Kansas Law Review called Personal Information is Property. So you know, where I come down on the question, but by all means look it up. If you want to read more about my argument that that that information has a third parties is widely regarded as the subject’s property. It’s all over. But for the courts to recognize it.
Patrick G. Eddington: Yeah. Well, with that, I want to turn to our panelists for their final thoughts. We are down to the last couple of minutes of this. So, I’ll just go in order that I’ve got up here. Laura.
Laura Bondank-Harmon: Yeah, I know, I just went on sort of a long rant about, you know, for the moment, jurisprudence, but I think I want to end with just saying that I think was a really important decision. And, I think it’ll have a lot to do with how courts deal with the ALPR are issue moving forward, because at the crux of that case was a person’s movement history and what that revealed to the government. And I think that’s extremely relevant to the question of the constitutionality of ALPRs and other types of surveillance technology. And I think it’ll be really interesting to see how courts grapple with that question.
Patrick G. Eddington: Rachel.
Rachel Levinson-Waldman: Yeah, I think maybe my last thoughts thinking about the ALPR issue is, in some ways, we might need a new term, right? We keep referring to them as automatic license plate readers, as has been the name for a long time. That is their core function. But as we’ve been talking about, increasingly these systems do so much more than that. They are collecting more information than that. They are putting together a fingerprint of a car. They are allowing these free forms searches. Some of them are combining with commercial data, some that are doing predictive work. Right. So based on the information that they pull in there, then predicting kind of future patterns of travel or what they might mean about somebody involvement in criminal activity.
So I wonder if we need to think about new terminology to kind of fit their capabilities, to kind of the communication about what they are. And I think that efficacy, both in the public square and the courts.
Patrick G. Eddington: Jim Harper, the final word.
Jim Harper: Slightly different, perhaps. Cato Surveillance Week: It’s like champagne corks popping. It’s a boolean. It’s joyous. It’s like Shark Week for policy wonks. This is great. This is tremendous. I’m already putting it in my calendar for next year. And I’ll just say, you know, a different way to talk about this. I’m really interested, as you heard. What makes things change? How do they change? And among many other things, I think just talking to your neighbors, telling people that you think it’s BS. A lot of the stuff that’s going on that helps build a community belief. It builds constituencies. And oh, let me also suggest you donate to the Cato Institute, donate to the Brennan Center and all you can donate to the American Enterprise Institute two so that we can all continue doing our work.
It’s a special part of our country that we have groups like these that support people, like my copy analysts to do this kind of work, and our traditions are always under threat and maybe more under threat now than before, especially in this rapidly changing technological environment. So thanks, Patrick, for getting us together. It makes me enthusiastic and excited and a little bit angry, but channeled in a good way. I appreciate all the work that all of you do. Thank you so much.
Patrick G. Eddington: Well, the feeling is entirely mutual. You know, my wife and I have been contributors to a number of organizations over the years, and I certainly appreciate the plug, not just for Cato, but for AEI and our friends at the Brennan Center as well. I’ll just finish for myself by saying this. As far as I’m concerned, the right to travel without molestation by government agents should be considered a fundamental human right, not just simply a constitutional right. I think it’s something that we ought to be able to do without having to worry about government agents tracking where we’re going, who we are meeting with, whether we’re going to see a doctor or anybody else for that matter.
So, I look forward to continuing this fight with all of you. I thank my panelists again for carving at the time to be with us. I thank our audience for being with us as well. Cato Surveillance Week concludes tomorrow with a look at all of this data that we have actually been talking about an awful lot today. This data broker problem, the commercial nexus essentially with the government and what it can do. So join us again tomorrow, 1 p.m. eastern. We’ll talk about that until then for the Cato Institute. I’m Pat Eddington. Thanks for watching.
