Flock Safety is Feeling the Heat

When the Supreme Court handed down its landmark ruling in Chatrie v. United States in June, it sent a clear constitutional signal: the state cannot circumvent the Fourth Amendment by turning to corporate databases in order to retroactively reconstruct a citizen’s physical movements.

In Chatrie, the Court rejected the premise that short-term location tracking or third-party data sharing stripped individuals of their reasonable expectation of privacy. This legal reality is now knocking at the door of automatic license plate reader (ALPR) networks.

On August 13th, Flock Safety CEO Garrett Langley posted a video announcement laying out several sweeping policy changes. Facing growing constitutional challenges in federal court and a wave of criminal indictments against law enforcement officers misusing the system for personal stalking, Flock announced that it is cutting its default retention period from thirty days to seven, mandating automated audit tools, and requiring officers to input case codes before executing searches.

“Abuse of Flock technology, at any level, is unacceptable… In recent weeks, [Audit Assistance] reviews have been associated with arrests of several law enforcement officers who allegedly abused the system… We will now require all law enforcement customers to adopt this feature by the end of this year. In addition, we will institute a proactive lockout. When a user’s activity meets defined criteria for abnormal behavior, Flock will automatically suspend access pending administrator review,” said Langley. A Washington Post investigation found that at least 69 police officers nationwide have been accused, charged with, or convicted of improperly using Flock and other ALPR systems.

To be fair, Flock and Langley deserve credit for acknowledging what civil libertarians have long argued: holding onto the location history of millions of innocent drivers for a month or more creates an unacceptable privacy risk. Dropping the default retention window to seven days and implementing automated lockouts for abusive search behavior are important steps toward corporate self-regulation. In an industry that often operates with minimal guardrails, Flock is showing more accountability than many of its municipal clients. However, from a Fourth Amendment perspective, these policy tweaks are a classic case of treating symptoms while ignoring the disease.

For starters, Flock Safety’s new seven-day retention window is largely an illusion. Existing clients are grandfathered into their original retention schedules, meaning thousands of communities may keep thirty, sixty, or even ninety day retention windows intact. More critically, Flock’s new “Evidence Mode” feature allows cops to unilaterally flag a citizen’s data and transfer it to permanent cold storage. Without a requirement for a judge to sign off on an “Evidence Mode” transfer, the platform gives individual officers a technical backdoor around the shortened retention window.

Furthermore, shortening the data retention window fails to resolve the core problem highlighted in both Carpenter and Chatrie: network density. In localities where Flock has deployed dense grids of optical and infrared cameras, seven days of continuous logging is more than enough time to map out an individual’s routine; places of worship, political gatherings, medical visits, and private associations.

There are multiple cases currently in federal court that present direct Fourth Amendment challenges to Flock camera usage. Schmidt v. City of Norfolk (currently pending at the Fourth Circuit Court of Appeals) directly tests whether Flock’s network density triggers the Carpenter doctrine. Represented by the Institute for Justice and supported by amicus briefs from the ACLU, Cato Institute, and others, Schmidt is viewed by many legal experts as the leading candidate to force a landmark ruling at the Supreme Court.

Public backlash, legislative scrutiny, and investigative reporting has Flock and other surveillance vendors on the defensive, and corporate guidelines fail to sufficiently address the Fourth Amendment issues with ALPRs. Until courts and legislatures require law enforcement to obtain a neutral, probable-cause warrant before accessing aggregated ALPR databases, Flock’s new guardrails will remain an administrative band-aid on a (likely) unconstitutional dragnet.