Similar camera systems are used in more than 5,000 U.S. communities
NORFOLK, Va.—Today, two Norfolk-area residents teamed up with the Institute for Justice (IJ) to file a federal lawsuit against the city, challenging the constitutionality of its massive vehicle surveillance system, which allows police to monitor the comings and goings of all drivers in the city. Lee Schmidt and Crystal Arrington argue that the program—which is used in thousands of communities across the country—violates the Fourth Amendment rights of all citizens.
“I don’t like the government following my every movement and treating me like a criminal suspect, when they have no reason to believe I’ve done anything wrong,” said Lee, a 42-year-old Norfolk husband and father who recently retired from the Navy.
“My work requires me to drive around Norfolk very often, and it’s incredibly disturbing to know the city can track my every move during that time,” said Crystal, a 44-year-old home health care worker who lives in Portsmouth.
In 2023, Norfolk Police partnered with a company called Flock Safety, Inc. to install 172 automatic license plate reading cameras across town. The cameras were strategically placed to create what Norfolk Police Chief Mark Talbot referred to as a “nice curtain of technology,” which would make it “difficult to drive anywhere of any distance without running into a camera somewhere.”
Unlike traditional traffic cameras—which capture an image only when they sense speeding or someone running a red light—Flock’s cameras capture images of every car driving by, which it retains for at least 30 days. Artificial intelligence then uses those images to create a “Vehicle Fingerprint” that enables any Flock subscriber to both track where that vehicle has gone and identify what other vehicles it has been seen nearby.
“Norfolk has created a dragnet that allows the government to monitor everyone’s day-to-day movements without a warrant or probable cause. This type of mass surveillance is a blatant violation of the Fourth Amendment,” said IJ Attorney Michael Soyfer.
And it is not just Norfolk police who can do this tracking. Because Flock pools its data in a centralized database, police across the entire country can access over 1 billion monthly data points. That means not just tracking drivers within a particular jurisdiction, but potentially across the entire nation.
“Following someone’s every move can tell you some incredibly intimate details about them, such as where they work, who they associate with, whether or not they’re religious, what hobbies they have, and any medical conditions they may have,” said IJ Senior Attorney Robert Frommer. “This type of intrusive, ongoing monitoring of someone’s life is not just creepy, it’s unconstitutional.”
All of this happens without any judicial oversight. Norfolk Police can access Flock’s database without a warrant and can view, save, and share any data prior to its deletion. Nothing about Norfolk’s operating procedures requires that officials establish probable cause and get a warrant before searching the system. Worse yet, Norfolk policy actually requires police to log in to Flock and “utilize the technology throughout their entire shift.”
It’s no surprise that surveillance systems like Norfolk’s have been repeatedly abused. In Kansas, officials were caught using Flock to stalk their exes, including one police chief who used Flock 228 times over four months to track his ex-girlfriend and her new boyfriend’s vehicles. In California, several police departments violated California law by sharing data from their license plate reader database with other departments across the country. And as is the case with other databases, these can be susceptible to hacking, which can reveal private data.
Several other local municipalities, including Chesapeake, Suffolk, Hampton, Newport News, Isle of Wight, and Franklin also use Flock cameras. The company allows these departments to share their data with one another—or any of the other police departments across the country that use Flock.
In May of this year, a state trial court held that Norfolk’s system lays a “dragnet over the entire city,” and that “[p]rolonged tracking of public movements with surveillance serves to invade the reasonable expectation [of privacy] citizens possess in their entire movements.” But that ruling only applied to the defendant in that specific case and thus left the surveillance system in place.
Other courts, including the United States Supreme Court, have ruled that the use of modern technologies for prolonged monitoring of someone’s every movement is a “search” under the Fourth Amendment and thus requires a warrant. In Carpenter v. United States, the Supreme Court held that accessing historical cellphone location data was a search, requiring Fourth Amendment protections. Relying on Carpenter, the 4th U.S. Circuit Court of Appeals held that a surveillance program in Baltimore, which captured aerial photos of 90 percent of the city every second for at least 40 hours a week, was a search because it “afforded the [city] retroactive access to a ‘detailed, encyclopedic’ record of every person’s movement in the city across days and weeks.”
This case is part of IJ’s Project on the Fourth Amendment, which seeks to protect the right of Americans to be secure in their persons and property. IJ is litigating several challenges to warrantless searches of private property, including in Louisiana, Pennsylvania, and Virginia. In New Jersey, IJ is also challenging the bulk collection and prolonged retention of newborn babies’ genetic data without parental consent.
