Flock Surveillance Law or Will Old Bird Fly?

Letter to Romans: Since cameras & cops are everywhere today, won’t “Flocks” fly when Sup Ct gets to this new technology bird? Case law suggests they’ll pass Constitutional muster, but only IF their data’s life & extent are limited so police can’t abuse them.

The sparse 4th Amendment & “surveillance” case law on cameras has so far leaned toward protecting citizens’ privacy with the need for judicial warrants, even in “public spaces.” This especially appeared so where it could be said the police were “searching” systematically to track a target & related information over time. In 2018’s precedent-setting Carpenter v US, the Justices held 5-4 the govt’s attempts to obtain cell phone location info over a long 127-day time span was a “search” requiring a warrant based on probable cause; this was so even though the information was “held” by a phone company & involved the target calling in public places. In other words, the Court clearly ruled for the first time that citizens don’t give up their privacy rights just by being “in public.”

On the other hand, despite Carpenter, people in “public” CAN surely still be legally photographed without a judicial warrant so long as time and extent are somehow limited aka reasonable. That’s why you see cameras on most street corners, Rings on peoples’ doors facing the street, at ATMs & above nearly every store checkout. Flocks have flourished so that nearly 120K are reportedly deployed nation-wide. Hooked up together, they constitute a massive historical database that can be used or abused by gov’t. Given the obvious privacy concerns, then, is there any doubt the ruling & rationale enunciated in Carpenter will be somehow tailored by the Supremes to include Flocks on a case-by-case basis? Anticipating that likelihood, Flock announced its standard 30-day data retention period will be reduced to 7 days. This “pause period” can be extended, e.g., upon the reporting of a crime & pending police investigation or judicial intervention. Yet, remember, the Justices in Carpenter didn’t set a specific time frame or usage to be applied in every case.

Davd Soul