Hacker News Reader

Comment by Manuel_D | Hacker News Reader

The difference is that your example involves physically stopping and searching people. This is not the case with Flock, which records images in public.

The government does not and never did require any warrant or justification to record people in public spaces. Not just the government, but normal people too: you can whip out four phone and start recording people in public any time you want.

View on HN

The government does need a warrant to surveil me, though, and multiple court cases have found that using an intermediate third party doesn't absolve the government from adhering to the fourth amendment.

The government needs a warrant to search you, your home, your vehicle, your email, etc. The government does not need a warrant to record you in public spaces.

You're correct that the government can't use a third party to circumvent privacy laws. But privacy laws never prohibited what Flock does. The government could directly set up its own cameras in public, and nothing about that violated the Fourth Amendment.

The government does need a warrant to surveil someone, though. Which is what is happening here: a third party surveils citizens and the government searches that data.

Whether or not the government needs a warrant to surveil someone depends on how the government is conducting that surveillance. The government does, for instance, need a warrant to wiretap you. They do not need a warrant to record people in public spaces. Nor do they need a warrant to, say, photograph the exterior of your house.

But they need a warrant to follow me around, record my movements, put them into a database which is searchable by other law enforcement. They're not taking a single photograph of a car, they're creating a database of movement of people who have not committed crimes.

No, they do not need a warrant to follow you in public. What more is there to say, besides that you're just wrong about what privacy laws protect?

They need a warrant if they're going to record and track my movements over the course of months.

If they're only tracking your movements in public, the no they do not. Again, you're just wrong about what privacy laws protect. They do not prohibit the police from surveilling or tracking you, they only control how the police is able to conduct that surveillance. If the police want to search your house or car, they need a warrant or at least probable cause for the latter. If they want to photograph you in public, they do not.

IANAL disclaimer.

Police do need a warrant to place a GPS device on your vehicle.

Data continuity is a function of data point frequency [0]. If all public space (and some participating private space) is monitored, the practical difference between a GPS device and a retroactive dragnet system disappears.

You are correct that police do not require a warrant to follow someone around in public, but these systems aren't that, and in practice much closer to the GPS tracking, which does require a warrant. It's unclear without trying this further in court which this should qualify as.

IMO: If the system has seen me exit the public space outside my home, or work, or someone elses home, or a store, or whevever, the system knows where I am at all points in time, like a GPS, with very little exception.

[0] https://en.wikipedia.org/wiki/Mosaic_effect

There's a big difference between saying

"Flock and other ALPR tech is illegal"

And

"Flock and other ALPR tech is legal. But it's my personal prediction that some future Supreme Court decision will make them illegal."

Where does "Flock tech might currently be illegal pending adjudication" land? Just because someone is doing it, does not make it legal.

For reference, US v. Jones was a 9-0 in the SC, in favor of Jones, though bipartisan split on the reasoning, which might be what carries over to any case that gets tried regarding this tech.

> Where does "Flock tech might currently be illegal pending adjudication" land? Just because someone is doing it, does not make it legal.

It's legal until your expected Supreme Court decision lands. This is just another way of saying "Flock tech is legal, but if the Supreme Court rules the way I want then it will become illegal."

> For reference, US v. Jones was a 9-0 in the SC, in favor of Jones, though bipartisan split on the reasoning, which might be what carries over to any case that gets tried regarding this tech

"Might be" is doing a lot of heavy lifting here. And again, until the court actually gives that ruling, Flock is legal.

> "Might be" is doing a lot of heavy lifting here. And again, until the court actually gives that ruling, Flock is legal.

There's a difference between de facto legal and de jure legal. If the SC strikes it down, it was never legal, ie void ab initio.

You realize that "de jure" is literally lation for "by law"?

Until some court reinterprets the law, it is legal. E.g. segregated school were until the Brown v. Board of Education landed and made it illegal.

> The government does not need a warrant to record you in public spaces.

This is not true. The question is whether you have a "reasonable expectation of privacy." If you do, then the government needs a warrant. This is why the government can't tap a payphone without a warrant even though it is in public.

It is true that a single police officer can post up somewhere and scan license plates without a warrant. The difference here is scale. The question of whether scale affects a "reasonable expectation of privacy" has never been addressed by the supreme court, though it has been raised before and discussed in concurring opinions.

> This is not true. The question is whether you have a "reasonable expectation of privacy." If you do, then the government needs a warrant. This is why the government can't tap a payphone without a warrant even though it is in public.

"Reasonable expectation of privacy" covers things like restrooms. Not highways, streets, parking lots, etc. This isn't relevant for Flock.

"Reasonable expectation of privacy" covers whatever the public believes is reasonable. The original case creating this doctrine was about phone booths.

Cool, then the Flock data should just be public and accessible to everyone since there's no expectation of privacy in public.

If not, why not?

There's nothing stopping you from setting up a webcam pointed out your window. If you want to set up your own public-facing ALPR cameras, there's nothing stopping you.

Can I put cameras up on every street corner and on every traffic light? Doesn't answer my question anyways. I'm asking if the government via a third party can have this ability, would you have any objection to the entirety of the public from having this data and camera access? I'm assuming not since the people who advocate for this technology see nothing wrong with it.

If you do have a problem with public access to these cameras and tracking software, then it would be hypocritical.

If you owned property, or otherwise got permission from the property owners to put cameras there, then yes.

Recording equipment didn’t exist when the constitution was written.

The Supreme Court has set precedence that video recordings of public spaces fall under the plain view doctrine: police don't need a warrant or probable cause to record things in public view.

Sure, but putting that data into a persistent database which law enforcement searches on demand is a violation of the fourth amendment.

No? Which Supreme Court decision decided that persisting video recorded in public is a violation of the Fourth Amendment?

Chatrie. It's about the use of the data, not the data itself.

Law enforcement searches a database of recorded, retained, aggregated data about people who have not committed crimes: this constitutes a fourth amendment search. Go ahead and record all you want, but when law enforcement decides to use that data, they have to get a warrant.

That case didn't cover public-facing cameras, that was about the government demanding telecoms hand over geolocation data on their users. The government was demanding that mobile providers hand over private data, akin to asking Google for your gmail contents.

This is far removed from a camera set up in a public space.

Chatrie held that the government conducted a fourth amendment search when it got the location data, even though the data was held by a third party. The reasoning was that the data revealed Chatrie's physical movements, not that Google itself was somehow a constitutionally private space.

It didn't just reveal Chatrie's movements, it revealed to movements of everyone in the geofenced area. And more importantly, it revealed movements even in private not just in public.

Again, this is far removed from a camera in a public space.

Chatrie was not about the dragnet capturing people in private spaces. It established that LE acquisition and aggregation of location information can constitute a fourth amendment search even when the observations are made in public.

But the observations in the Chatrie case weren't made in public. This was private information that only Google had access to, and law enforcement went and demanded that Google hand over that private information.

By contrast, a person can stand on a street corner with their phone and record everything a Flock camera records.

The SC's holding was that the government's acquisition of location data from a third party was itself a fourth amendment search because the individual has a reasonable expectation of privacy wrt location data. So you're kind of agreeing with me here: the data is either private and subject to a warrant, or it is in public where individuals do have a reasonable expectation of privacy wrt aggregated location information.

And again, a person standing on a street corner is constitutionally distinct from LE following and tracking individuals movement over time.

> The SC's holding was that the government's acquisition of location data from a third party was itself a fourth amendment search because the individual has a reasonable expectation of privacy wrt location data.

Specifically, the GPS coordinates logged by their cellphones.

> So you're kind of agreeing with me here: the data is either private and subject to a warrant, or it is in public where individuals do have a reasonable expectation of privacy wrt aggregated location information.

You're missing the point: Flock camera's don't record where people have a reasonable expectation of privacy.

> And again, a person standing on a street corner is constitutionally distinct from LE following and tracking individuals movement over time.

Wrong: as long as law enforcement are only tracking your movements in public, they don't need a warrant or probable cause.

Reply on news.ycombinator.com