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What the Courts Actually Said

· 5 min read

Someone on X put the lawyer’s version of the Flock case in four lines. Critics: the cameras are unconstitutional. Reply: every appellate court that has had the chance has said the opposite. Critics: we don’t care what the courts say. Reply: you mean the institution the Constitution empowered to adjudicate its meaning?

Start with the part the post has. As of now, no appellate court has held that a networked automatic license plate reader requires a warrant. That is not a rumor. It is the scoreboard. If you tell people otherwise, a competent opponent will read the cases aloud and you will look like you never opened them.

Washington’s Court of Appeals, in State v. Simonson, treated a Flock hit on a public road as close kin to an officer reading a plate with his eyes. In January, a federal district judge in Norfolk granted the city summary judgment in Schmidt v. City of Norfolk. Nearly 200 Flock cameras. A rolling window measured in weeks. The plaintiffs, the judge said, had not shown the system could track the whole of a person’s movements. “Not today,” in Norfolk, with that density, on that record. Flock’s lawyers will keep quoting Carpenter’s line that the Supreme Court was not disturbing “conventional surveillance techniques and tools, such as security cameras.” Knotts, from 1983, is the older pole: a person in a car on a public road has no reasonable expectation of privacy in his movements from one place to another.

Say all of that before you say anything else. Then notice what the scoreboard is not.

It is not the Supreme Court on ALPRs. There is no such case. It is not a Fourth Circuit holding on Norfolk. That ruling is on appeal. It is not “Flock is constitutional, forever, everywhere.” The Norfolk opinion is a fact-bound “not enough cameras, not enough days, not the whole of a life.” A holding that turns on density is a holding that gets more fragile as the network grows. Flock’s business model is to grow the network.

Carpenter is the live doctrine, not Knotts alone. Seven days of cell-site records was enough to be a search. The Court refused to extend the old third-party rule to an exhaustive chronicle of movement. In 2021 the Fourth Circuit, sitting en banc, held that Baltimore’s aerial surveillance program, even with gaps, crossed the line because it could reveal intimate patterns. In June of this year, in Chatrie v. United States, the Supreme Court held that police conduct a Fourth Amendment search when they acquire cell-phone location data from Google, even for a short window, even from a third-party company. Justice Kagan wrote that a person has a reasonable expectation of privacy in those records, and that how much data you take is not the on-off switch. The Court sent the case back on whether that particular warrant was reasonable. I am not going to pretend Chatrie banned Flock. It is a geofence case, not a plate-reader case. I am going to refuse to pretend a 6-3 holding that short-duration location data from a vendor is still a search is irrelevant to a vendor that sells short-duration location data from a pole.

The fight is whether a searchable, multi-jurisdiction plate mosaic is a “security camera” or a tracking device. That is not settled. “Every appellate court, case closed” is a snapshot of a fight that is still moving.

Even if the snapshot never moves, it would not end the argument this site is making. The Constitution is not whatever the last panel said. I have a whole series, The Second Draft, on a charter rewritten by drift and convenience until the written limits no longer bind. Courts blessed internment. Courts stretched commerce until it had no shore. “The institution empowered to adjudicate” can still be wrong about the thing it is construing. A natural-rights claim does not expire when a district judge says not today.

There is a cheaper dodge inside that last line, the implication that rejecting a current holding means rejecting courts as such. It does not. It means treating judges as fallible readers of a text, which is what they are. The Fourth Amendment forbids unreasonable searches, requires particularity, requires probable cause. A system that photographs every car so that a reason can be invented later is the general warrant under a new name. I made that case in Flock Is the Most Un-American Company in America and at length in The Database of Ruin. The courts have not refuted it. They have, so far, declined to apply Carpenter that far. Decline is not the same as a blessing, and a blessing would still have to survive the amendment.

Legality is not the whole question anyway. A thing can be currently lawful and still be the thing the Founders went to war over. Say that once. Then go back to the text. The next move from the other side is not a case cite. It is that you never had a right not to have your plate read, and that the despot-with-a-file is a story we have no statute to match.

Next: You Never Had That Right

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