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Comment by Waterluvian | Hacker News Reader

I’m no American but isn’t it a 4th Amendment issue, and the problem is how the various local, state, federal governments are using a private contractor (Flock) to do an end run around this by pretending that it’s no different from any private citizen recording another in a public space?

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This has been allowed generally in US courts, to use private companies to collect data, etc.

Is there a whole thing in the U.S. where it’s a no no with regards to cell data without a warrant? This feels like that.

(bear with me, this all comes from random podcasting over the past decade)

My understanding is they can get a current location with just a subpoena (not a warrant) already, but looking at a history of past locations to watch their movements constitutes a Fourth Amendment search requiring a warrant and probable cause.

Originally the Third-party doctrine[1] also would allow searches that were otherwise illegal, but recently exceptions have been made for GPS/location history in the courts in recent years (Carpenter and Chatrie).

[1] https://en.wikipedia.org/wiki/Third-party_doctrine

"It's complicated."

Cell phones are kinda weird because they carry some of the elements that were built up around hardline phones (similar to how physical mail has a ton of protections that accumulated historically that make it distinct from other mediums).

This one generally gets treated legally more like any other data collection in a public space. Essentially, it's not a violation of your rights if somebody sits on a street corner and takes a picture of every car that drives by. There's a really interesting debate about whether there should be some concept of scale (Flock makes it really easy to effectively put somebody on every street corner), but the law generally hasn't changed to take that kind of thing into consideration.

You can see the same kind of thing in many of the AI training debates. Training AIs on bulk data has been found in a couple different cases to not be copyright infringement because they're drawing parallels to any other learning, even if the scale here is obviously several orders of magnitude apart from what was ever possible before.

For what it's worth: if I own a business in the US and have a camera pointed at the street, and the police ask me for footage, I don't need to require a subpoena. I can just choose to give it to them.

The law doesn't need to change. Court opinions just need to emerge (hasn't been tested yet), and this is quite clearly angling in the direction of the cell tower data decision.

> For what it's worth: if I own a business in the US and have a camera pointed at the street, and the police ask me for footage, I don't need to require a subpoena. I can just choose to give it to them.

Correct, and SCOTUS decided this was inappropriate for cell tower data because 1) you effectively need a cell phone to live in the modern world, and 2) having a cell phone spits of tons of data.

This is directly analogous to Flock. It's more likely than not that this will end up getting a Third Party Doctrine exception (i.e. Flock and similar will be forbidden from providing this data to the government in lieu of a subpoena)

Flock isn’t a third party here, when they’re being contracted by the government.

You are incorrect. Flock is not a government agency – it is a privately owned business – therefore it is a third party as it's relevant to Third Party Doctrine. Whether it's contracted by the government or not is irrelevant.

Even if you were correct, it would strengthen the 4th Amendment protections on Flock-collected data, not weaken them.

> Essentially, it's not a violation of your rights if somebody sits on a street corner and takes a picture of every car that drives by.

In theory sure. But the strange truth is that in practice you aren't allowed to do this.

Do you have an example of that?

There may be a solid legal argument that since Flock is operating hand in glove with the government that they effectively are the government within the context of 4A. IMHO, it's not out of the realm of possibility that courts reexamine the government's ability to buy up private data which they would normally be precluded from collecting, and establish limits on their ability to do so.

This is a good point, especially since it appears that the access flock given is basically reserved for the government. For instance we can't buy from flock a boyfriend stalking pass. The offerings aren't really in line with what flock provides HOAs and private companies...

This provides an interesting avenue for getting the law changed. If there is no expectation to privacy in public, there should be nothing stopping someone from renting space to install cameras all around their town and selling access to "where are your representatives right now" data feeds.

When a "private company" is using public land and public money to set up their surveillance devices, it is no longer private.

And when it only sells to government customers.

"Digital effects" have always been a grey area for unreasonable search-and-seizure. This was an infamous moment for the late Antonin Scalia, who, iirc, argued that the constistution couldn't reasonably be addressing this matter, as the Founding Fathers had no concept of digital effects when defining "documents and effects".

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