Listen to “Mon Explains Flock Use; Too Little Too Late” on Spreaker.
The Monongalia County Sheriff’s Department met with members of the media Friday afternoon in an effort to help reporters better understand the agency’s use of its already-installed Flock Safety camera system.
That level of transparency is commendable. But in this instance, it came a bit late, only after public concern reached a fever pitch — not just in Monongalia County, but across West Virginia. It’s also too little compared to the constitutional safeguards these systems potentially violate.
Veteran MetroNews reporter Mike Nolting attended the briefing and filed a comprehensive story focused on information provided by Chief Deputy Mark Ralston.
According to Ralston, the cameras alert deputies only when a license plate or vehicle description matches a “hot list.”
Even then, he said, deputies must investigate the alert to determine whether it actually relates to a crime or incident before taking action.
Ralston also emphasized that the system does not collect personal information. It records only a vehicle description and license plate number. The data is retained for 21 days before it is automatically deleted.
“They (cameras) capture images of license plates and vehicle descriptions,” Ralston said. “They are not into the DMV system at all. We get no other information than the plate.”
All of that may sound reassuring, even responsible.
But it doesn’t answer the fundamental constitutional question.
The cameras don’t collect information only on vehicles appearing on a hot list. They collect information on everyone who passes by. Every vehicle is scanned. Every license plate is recorded. Every driver becomes part of the database — whether suspected of a crime or not.
Per Nolting’s story, “During the first 30 days of use, there were more than 550,000 images with 101 department searches, meaning nearly 99 percent of the images collected were never viewed.”
That’s where the constitutional concern begins – that stat shouldn’t comfort, it should concern.
The Fourth Amendment was written to protect citizens from government searches conducted without probable cause. Its purpose was to require individualized suspicion before government intrudes into the lives of ordinary Americans — not afterward. And don’t forget, the Court has already said as much in a case about using Google data. See Chatrie.
The justification offered for systems like Flock is straightforward: collecting information on everyone makes it easier to identify the few who commit crimes.
Few people would object to catching criminals. Mon County offered an example of the system’s ability in its briefing highlighting an arrest.
But that’s not the point here. The point is whether government should be permitted to surveil everyone first in hopes of finding lawbreakers. Why should a citizen see his rights curtailed in order to apprehend or prosecute someone else? Smacks of the old quote, “Why must I set myself on fire to keep everyone else warm?”
In those terms, it all becomes a very different proposition.
Then there is the hot-list policy itself. The Sheriff’s Department policy states:
“Hotlists are created only by supervisory personnel or those authorized by the Sheriff. They must be temporary, tied to active investigations or warrants, and reviewed frequently. A Hotlist entry alone does not establish justification for a traffic stop.”
Notice the wording: “active investigations or warrants.”
Not “active investigations and warrants.”
That language appears to allow someone to be placed on a hot list even when no warrant has been issued.
Why?
West Virginia already has a well-established process for obtaining search warrants. If law enforcement has probable cause to believe someone has committed a crime, officers can present that evidence to a magistrate or judge for review to decide if placement on a hot list is justified.
At a minimum, requiring a warrant before placing someone on a hot list would introduce an independent judicial check before government begins electronically tracking a specific vehicle.
Even that, however, does not resolve the broader issue.
The larger concern is the collection of location data and images on everyone else who has done nothing to justify government scrutiny.
Nor is this issue comparable to voluntarily sharing information through a cellphone app or social media platform. Those situations involve a citizen choosing to disclose information to a private company, however imperfect that choice may be.
Neither is it the same as the longstanding rule that people generally have no reasonable expectation of privacy from observation by other citizens while traveling on public roads or even from government-owned cameras.
The question here is different.
It is whether government may systematically collect, retain and search information about everyone’s movements without first obtaining judicial authorization. Anything short of no runs afoul of basic freedom.
Given the technical acumen of the system, in addition to a warrant for a hot-list inclusion, why not mandate that before any evidence may be retained digitally from day to day, a warrant for this action too must be obtained.
These questions deserve an answer from the courts, and sooner rather than later. Prior to that, the legislature could and should step in to modernize West Virginia code to reflect the existence of such systems in an effort to safeguard privacy.
Until then, other law enforcement agencies in West Virginia should follow Putnam County’s lead and suspend usage.
If that costs Flock business in West Virginia, so be it.
One company’s revenue should never outweigh even one American’s constitutional rights, especially when the money is coming from taxpayers.