The Fourth Amendment protection against unreasonable searches and seizures does not say that the government cannot search your house. Instead, it lays boundaries that officials are supposed to stay within to conduct such a search. It’s all built on the judicial premise of “innocent until proven guilty.”
Lately, Virginians are worried about surveillance on the roads known as “Flock cameras” (Flock is the brand name). These cameras are, according to the manufacturer’s marketing, “solar-powered, motion-activated, and infrastructure-free cameras which are used for license plate reading and can identify and categorize details of vehicles that pass by, including make, vehicle type, color, license plate, state of the plate, and unique features.”
The cameras are colloquially known as license plate readers.
Flock camera systems operate under contract with law enforcement agencies, neighborhood associations, and private property owners, and as of 2024, the company claims to operate in over 5,000 communities across at least 42 states.
Two months ago, the cameras were credited for helping locate a missing girl and apprehend her kidnapper in Texas. And here in Virginia, they were used to locate an estranged mother who took her kids from a Fishersville bus stop to Georgia.
This past week, Virginia Gov. Glenn Youngkin amended a bill to create restrictions on the use of videos taken by the cameras as well as the length of time they could be kept. Under his proposal, law enforcement would only hold onto images for 21 days, down from 30. The restrictions would also bar Virginia police agencies from sharing Flock data with police in other states without a warrant, subpoena, or court order.
The governor’s proposal also withholds expansion of the deployment of these cameras until 2026, after a new General Assembly session convenes in January and passes the bill. If the bill passes in 2026, the Virginia State Police propose to install 5,000-plus units on the highways they patrol.
Defense attorneys from the American Civil Liberties Union and the civil liberties law firm The Rutherford Institute argue that the cameras are a form of “warrantless surveillance.” But law enforcement counters that observing a citizen in public places does not require a warrant.
The governor’s amended bill tries to, though in many more words, do what the Fourth Amendment does: acknowledge that sometimes law enforcement needs to search for something or someone, while at the same time, it puts restrictions on that authority so as not to trample rights.
The bill tries to define the proper steps that have to be taken to use that authority as well as defines the punishments for police officers caught misusing the data. One can be charged with a misdemeanor for abusing the technology.
The Virginia Association of Chiefs of Police asked the governor to veto the original bill, House Bill 2724, sponsored by Del. Charniele Herring, D-Alexandria. That bill would have limited the use of images captured by the cameras to specific criminal investigations or searches for missing persons and children. Rather than veto the bill, the governor amended it.
John Whitehead of the Charlottesville-based Rutherford Institute said why he opposes the use of the cameras: “Although preemptive precrime programs, driven by surveillance cameras and fusion centers, are popping up all across the country, they are not necessarily making communities any safer, but they are endangering individual freedoms. As such, the threats posed by these license plate readers to First and Fourth Amendment rights cannot be understated.”
The interesting thing is, given the fact that many people have heard about highway cameras and many may have an opinion, little public policy polling has been done on the overall pro-or-con sentiment. Perhaps pollsters feel that public sentiment about such technology, given its already ubiquitous nature, would be a moot point.
The technology genie is not going back into the bottle, so as in 1789 when the Framers created the Fourth Amendment, we need strong guardrails and punishments for people who cross them.
This article was originally published at www.dailysignal.com
