> I don't understand why a police cruiser can sit in a public space (or even a private one) and write down licence plates and descriptions of passers-by with pen and paper, or record everything around them with dashcams and bodycams for later use, but when it comes to cameras on a pole this would require a warrant.

Scale actually matters. Things that are generally OK at a small scale become problematic at larger scales. A single police cruiser writing down license plates isn't able to track you in the same way a huge surveillance network is, and the opportunities for abuse are much lower.

Former law enforcement officer here. I can say that when we conducted surveillance, we weren't allowed to use equipment that wasn't common for normal people to use. So for example, I couldn't use some sort of long-distance microphone to overhear a conversation between two people in public because a normal person wouldn't have that same type of technology. I think this applies in this context to say that a cop just scanning and logging every single plate that traverses a certain area is outside the bounds of what we'd consider lawful for normal surveillance. Alternatively, if a normal person would just sit down and write down every single car description and plate that passed by their house or any other public area, a cop doing the same thing would be reasonable. The scale of modern data collection for police is whats dangerous to individual privacy rights.

But you can generally FOIL records of this. Want body cam footage of what the officer was doing, you can generally get that. Want the video footage from their dash cam while sitting there, you can generally get that. However municipalities treat the data from these license plate cameras like a state secret. That disparity is largely what’s at issue here.

If I, as Joe HOA President, walk up to the deputy and ask whether they wrote down plate ABC-XYZ, the answer would be no. Or at least “why, did they commit a crime”?

If I, as five-states-away-podunk-town-cop, walk up to the sheriff’s deputy and ask if they saw a specific vehicle, the answer would probably depend on the degree of trust between our departments. Which would probably be low if they don’t know me. If I then said “oh, but you should, because it’s my ex, I wanna know if she’s seeing this guy I hate,” the answer would be “no, and get out of here before you buy yourself an investigation into you.”

So one difference in kind is the cross-jurisdictional “sharing” (which extends even to private, non-governmental parties!). There’s a difference between the deputy writing down what they see and a clown car packed with a cop from every department in America plus every Home Depot plus every nosy HOA.

I’d argue “requires an employee to sustain” vs “does not require any meaningful cost to sustain” is also a difference in kind—certainly with respect to the sorts of policies that flow from it.

I agree with TFA that this tension is by no means new to the Americans, and there’s a well-established way of dealing with it: a warrant from a judge. If that’s good enough for your cell tower pings now, surely it’s good enough for “all your movement records created as a consequence of moving in public.”

A difference of a sufficient degree becomes a difference in kind, because whatever the internal justifications, the external implications of the system for society change drastically.

If your police force installed officers in parked cruisers at every intersection to record license plate numbers and then digitized that information so you can build up a dossier of times and locations for a given individual without probable cause that would be both illegal and a huge waste of resources. ALPR just do it at scale so it's cheaper; still illegal without cause.

> A difference in degree

But a pretty huge difference. It's the difference between a few individuals throwing waste into a river vs a corporation systemically polluting it. Surely one is more of a problem than the other?

Because of the scale: ALPR’s track where everyone is and was all the time. This allows entire categories of intimate information to be learned, that clearly threaten the civil liberties that the 4th amendment was written to protect.

For example, an officer sitting on a city street is very unlikely to learn where his wife goes every day, an ALPR search will answer that question.

An officer walking along the street making note of what he sees is very unlikely to observe and make note of the precise daily movements of someone in August three years ago, an ALPR search will answer that question.

The degree/kind distinction you’re aiming at is meaningless, it’s like trying to argue that shooting someone with a firearm is the same as shooting someone with a paintball gun in principle, sure but maybe one of them is orders of magnitudes morw powerful and impactful, and so deserves a different degree of consideration in how and when it is applied?

Because if you wanted to hire the number of police to sit and monitor a public space equal to the number of flock ALPRs you would probably quickly become larger than your average city's entire budget

If the police stationed officers constantly at major intersections doing that, the outcry would be no less than having cameras do it.

Also, if it's the police, at least they're part of the community and people can monitor and have an effect on what they do. When it's a private company, none of that is true.

Once you remove constraints imposed by needing actual labor you make it a difference in kind since you are allowing for tracking of anyone versus having limited information on a limited area.

Police already don’t need warrants to gather video footage from homes and businesses. It certainly isn’t ineffective or else they wouldn’t do it, but everybody knows how effective video footage is. The difference for most does seem to be that it doesn’t cost man hours. We have had cities in the USA with 10k+ cameras in public spaces for years now without much fanfare.

A difference in degree is a difference in kind. Computer scientists struggle with a lot of legal concepts because they love to reduce situations in attempt to distill some particular facet and argue from analogy. A lot of poor legal analysis regarding things like fraud go similarly: “well in principle isn’t this the same as if I just . . .”

If there were literally hundreds of thousands of government agents on every corner writing down every person/car that walked by, it is quite probable this would be illegal even though you have no expectation of privacy in public. See Carpenter V United States and some of the concurring opinions in United States v. Jones.

Would you feel similarly if microphones were installed everywhere to record all public conversations for analysis via algorithms? Is that the same as police officers listening to conversation in a public space and taking notes?

Simply replace every pole with an officer in their cruiser then and we’ll all be happy.

I believe you’re trying to articulate the act of witnessing from the act of investigating, and where the boundary between the two is. To me it seems like the boundary should be “does the general public have access to this information?”. If so, it’s allowable. If not, then a justification should be required for starting an investigation.

As someone who strongly opposes flock cameras...

This is a huge problem that people will try to sweep under the rug or hand wave away with wording like "It's the scale the matters".

Ideally, laws need to be written like programs are, where fundamental rules of the system are derived and programmatically put into action. So words like "scale" mean nothing. "I need the variable to go negative when the scale is large". Most programmers here will immediately snag on "scale" not being a hard value.

So what we actually need is a redefining of the fundamental rules, and well, that is very challenging to do such that it's still legal to walk around an record everything in public, but not legal to passively record everything in public all the time. How do we solidly and unambiguously differentiate a cops dashcam, from a police camera on a portable base station, from a flock camera on a corner to a private business with a security came to a firestation with a security camera.

Legally it's a very challenging problem to create a "programmatic differentiation" from the kind of camera use we want, and the kind we don't want.

The degree is the problem. I’d have similar complaints if each Flock camera were replaced with an around-the-clock staff of police officers recording every license plate.

right now, neither needs a warrant. if searching LPR camera history starts to require a warrant, it probably wouldn't take much to argue that sending officers out to manually do the same thing should require one too.

EDIT: i have no doubt that Flock and other ALPRs got so widespread because four ALPRs watching each direction at an intersection is basically invisible in comparison to four cop cars at every intersection.

if plate readers were as visible as cop cars (including agency branding) people would have probably gotten bent out of shape a long time ago.

Have you met cops? They are not able to sit still or write things down. You expect too much of them.

Aggregation. Correlation.

Because the physical impossibility of a department doing that 24/7 every square inch of a city creates an expectation of privacy.

> I don't understand why a police cruiser can sit in a public space (or even a private one) and write down licence plates and descriptions of passers-by with pen and paper, or record everything around them with dashcams and bodycams for later use, but when it comes to cameras on a pole this would require a warrant.

Similar issue: cell phone interception via Stinger cell base stations by law enforcement. A U.S. judge in Ohio ruled that using the device to sweep up data from thousands of unsuspecting individuals to track one suspect gave the government unconstitutional, "unbridled discretion" to monitor private citizens.

Another similar issue: A judge in Mississippi ruled "tower-dump warrants", where law enforcement requests info from cell companies on users/phone numbers in a geographic area in a certain time frame are illegal and too broad. The judge declared them an arbitrary government intrusion that violates the Fourth Amendment's particularity requirement

A third similar issue: In U.S. v. Chatrie, the U.S. Supreme Court ruled 6-3 that reverse-location "geofence warrants" constitute a Fourth Amendment search. The ruling establishes that users maintain a reasonable expectation of privacy over their location data, meaning law enforcement can no longer execute warrantless, sweeping digital dragnets through third-party data.

These are 3 examples of large scale police surveillance that have been ruled illegal because they are broad surveillance and give police too much power without a specific legal justification. This seems very similar and I expect the court cases on ALPR cameras to end up in the same place, but it may take a decade or so.

License plates are public property.

look into "dragnet"'s as that's the term (afaik) and the issue at hand.

You are comparing individual human observation with an automated surveillance network. Their capabilities are vastly different. It's like comparing a taser with an M1 Abrams tank.

When it comes to surveillance, it is not enough to say "difference in degree, not in kind". The difference is the degree. Memorising someone's face is not surveillance, building a database of faces is. Seeing someone you recognize go into a store is not surveillance, writing down everywhere they go during the day is.

Because the ability to scale up a bunch of officers sitting around writing down literally everything they see is limited in comparison. It can only be so invasive and “always-on” everywhere. Throwing up a few dozen flock cameras costs a fraction of that and scales incredibly quickly.

You’re missing the point. It seems like you’re saying how things “generally” are, but not how they legally should play out. For instance, among my lawyer friends, they insist that drug-sniffing dogs should require a warrant as well, and a few have said they’d happily take a case like this pro-bono to start putting the goalposts where they belong.

>Willy-nilly search for relatives, lovers, love-interests, rivals, etc. would potentially be a fireable offence --like HIPAA violations. There is no technical reason there could not be technical controls preventing abuses.

So you're fine with 1984-ish type stuff as long as it's only used to enforce the will of the state and never used by the agents of the state for their own purposes?

> I would want police to know where I live ... but I wouldn't want that accessible to others.

Oddly, this was 100% commonplace before about 2000 or so, in the US at least. Every household got a free phone book from the phone company that contained the name, address, and phone number of everyone in town. I think you could opt out, but almost no one did.

It was incredibly handy and sometimes I still miss it. I'm not 100% sure why it was considered OK for so many decades but today would be considered a PII data leak, though I suppose it being limited to your local area vs. searchable by the whole world has something to do with it.

> There have been more cases of "someone broke into my house at exactly [time]. Can you track their license plate and track them down" that I'm willing to make that tradeoff.

I'm not, especially since anecdotally, police are generally unwilling to use these tools to solve petty crime anyway.

"someone broke into my house at exactly [time]. Can you track their license plate and track them down"

Sounds reasonable, but most police departments will not do this, even if the data is available to them and running the query is easy.

They will tell you to file a report, preferably online, which will then be incorporated in local stats, and may also be useful in your interactions with your insurance company.

But they will not do anything to help your specific case.

This is fair, but in my mind, there's still data that's way too accessible for police without proper oversight. What I'd prefer is a system where if the police access it without court approval, they generate a post-access review to confirm that the police did it for a valid reason, such as an emergency. Otherwise, I think any traditional access to that kind of data should have to be via court order.

That's cute and technically accurate but doesn't help when having conversations with the public.

"Warrantless mass surveillance technology" creates a category into which these and similar devices can be aggregated together where people's concerns tend to be about the same.

That phrase was suggested by a local chief of police while we were having discussions on policy.

Computer isn't quite it, internet connection itself seems closer. Then again an Android phone with terminal emulator could also run attacks.

Seems like a nonsense comparison either way. These cameras are in public places and provide surveillance intel for governmental entities.

i see it more like an argument against increasingly networked solutions. red-light cameras used to just upload when an incident occurred (or maybe required routine physical downloading?). the object itself did one thing. now it's cheap to feed continuous live feeds to a centralized processor... and once it's there, it's cheap to do a lot more.

The claim that there’s no mal intent to copaganda comes off as weirdly apologist.

Do you really think people don’t know how they’re framing the situation when they choose to use language this way? It’s all just an innocent misunderstanding, that just so happens to serve the interest of existing power structures?

If you want to change "their" to mean "data about them" rather than "data owned by them" you have to not give precedence to the original public meaning. The result of that is that ordinary people are in a worse position to know what the law means, because it can fundamentally change by reinterpreting a word.

It seems very easy. Always on spy camera installed for the express purpose of dragnet surveillance? Illegal. Film child’s baseball game? Legal.

I find this attitude I find kind of tiring. Gosh it’s just sooo hard to figure out the difference between Flock Safety and Big Bill’s Little League Sports Photography. It’s actually very straightforward to determine the difference between these two things. So easy, an idiot could do it. Or a judge.

Haven't stalking and surveillance always had a different interpretation despite mostly taking place in public?