I wonder what our founders would think about tools like Flock.
From what I understand these systems are legal because there is no expectation of privacy in public. Therefore any time you go in public you cannot expect NOT to be tracked, photographed, and entered into a database (which may now outlive us).
I think the argument comes from the 1st amendment.
Weaponizing the Bill of Rights (BoR) for the government against the people does not seem to align with my understanding of why the Bill of Rights was cemented into our constitution in the first place.
I wonder what Adams or Madison would make of it. I wonder if Benjamin Franklin would be appalled.
I wonder if they'd consider every license plate reading a violation of the 4th amendment.
> I wonder what our founders would think about tools like Flock.
I suspect they'd make a distinction between private individuals engaging in first amendment protected activity like public photography and corporations or the state doing the same in order to violate people's 4th amendment rights. We certainly don't have to allow for both cases.
They'd have not forced license plates to be displayed at all times to begin with, as they are a search of your papers without probable cause your vehicle is unregistered. Private ships in those days (probably the closest equivalent of something big and dangerous that could do tons of damage quickly on the public right of way) did not have required hull numbers or anything like that. Of course that doesn't totally solve the flock problem, but makes it a lot harder.
Ships then, and now, don’t really need numbers for identification. There are various unique numbers that they can and do use occasionally for specific purposes(IMO numbers and hull numbers). However, a ship’s name and home port were, and are, more than sufficient to identify a ship for legal purposes. You don’t need a registration number on a ship, and certainly wouldn’t have needed one then.
The authorities absolutely kept meticulous records of ships entry and exit from any harbour as well as what was on board, what was loaded and unloaded and frequently a list of all persons onboard.
Some flag states enforce uniqueness constraints on name and home port combinations. The US does not, but that really doesn’t matter much in the real world. There just aren’t that many conflicts.
More importantly, the founding fathers very much did not extend privacy rights to ships. Intentionally so. The very first congress passed a law in 1790 that exempted ships from the requirements of needing a warrant to be searched.
The ability to track and search ships without warrants has been an important capability of the federal government from day one.
Hell, the federal register of ships is published and always has been. I don’t know how they would have felt about private cars, but the founding fathers revealed preference is that shipping and ships are not private like your other “papers and effects” are.
Thanks for this level of detail. History is complex, which is why I tend to be skeptical of bare “what would the founders have thought about this” complaints.
The comparison to private ships doesn't quite land, IMO.
Ships
- ships big enough to do material damage would be very small in #
- ships big enough to do material damage would have a (somewhat?) professional crew
- whatever damage they could do would always be limited to tiny areas - only where water & land meet, only where substantial public or private investment had been made in docks/etc
- operators have strong financial incentive to avoid damaging ship or 3rd party property (public or private)
Cars
- in some countries the ratio of cars to people is approaching 1
- a vanishingly small portion of vehicles have professional drivers
- car operators expect to be able to operate at velocities fatal to others on nearly 100% of land in cities, excepting only land that already has a building on it, and sometimes not even that.
- car operators rarely held liable for damage to public property, injury, or death and there's strong political pressure to socialize damage and avoid realistic risk premiums
I don't love flock but IMO the only realistic way to get rid of license plates would be mandatory speed governors that keep vehicles from going more than like 15mph. I would be fine with that, but I suspect most would not. If we expect to operate cars at velocities fatal to people outside our vehicles, then there will always be pressure to have a way of identifying bad actors who put others at risk.
> I don't love flock but IMO the only realistic way to get rid of license plates would be mandatory speed governors that keep vehicles from going more than like 15mph.
I don't understand this reasoning. License plates don't stop speeding from happening. Removing license plates wouldn't prevent enforcement of speed limits either. A cop can pull over and ticket someone without a license plate just as easily as they do now.
At best they're good for a small number of situations where they help identify a car used in a crime (say a hit and run) but even then plenty of crimes are committed using cars that can't be linked back to the driver (stolen for example) or where the plates have been removed/obscured.
I’m not arguing that license plates solve the problem of the danger of cars, simply that as long as cars are dangerous to people not inside the car, there will be political pressure to have some way, however imperfect, of identifying them and their owners/operators.
Even the least sophisticated criminals know that you should buy a stolen Kia or Hyundai for ~$100 and use that to commit your crime. I suspect most of the crime these Flock cameras are catching is red-light runners and maybe hit and runs if it happens to be caught on camera.
A hit and runner hit me in front of such camera and totalled my truck. Police refused to investigate, they're not interested in using camera for such reasons nor is there much incentive that's in it for the police to do so.
Often, the same people crying about Flock will decry private arms ownership through mental gymnastics.
These very same ships you speak of that could do "tons of damage" had actual cannonry - with no registration or restrictions on ownership or purchase, either.
You can still buy and bear a cannon with no background check or registration or any of the like, FWIW. Very easy to order on the internet and have shipped straight to your door[].
You can, but be aware that an exploding cannonball (widely available in 1776) is considered a destructive device, so each shell must have an NFA stamp. Solid shot is not considered a destructive device.
> because there is no expectation of privacy in public
Funny enough thats actually not true. Legally speaking. It's often claimed but it is an over simplification.
I think maybe the worst part is that the more we buy into this belief the more self fulfilling it becomes (see third link). But I don't expect anyone to believe me so here's several links. And I'd encourage people to push back against this misnomer. In the most obvious of cases I hope we all expect to have privacy in a public restroom. But remember that this extends beyond that. And remember that privacy is not binary. It's not a thing you have complete privacy or none (public restrooms again being an obvious example). So that level of privacy that we expect is ultimately decided by us. By acting as if it is binary only enables those who wish to take those rights from us. They want you to be nihilistic
Your founding fathers would become feasible perpetual energy sources as they roll in their graves seeing what your country has turned into. Not that you guys are alone - a lot of countries would benefit from such energy sources too.
> From what I understand these systems are legal because there is no expectation of privacy in public.
This is a common line of phrasing parroted by Flock and their supporters to no end but it's a myth. The SC, as much of a joke as they are now, established that a person has a reasonable expectation to privacy in their long term movements in Carpenter v. United States (2018). To date there is NO precedent carved out in the constitution or ANY Supreme Court case stating that people have zero expectation to privacy in public.
I'd bet many of the founders would've been amazed at the technology and insist on wide scale adoption. It could've further cemented the power of slaveholders over their slaves. It could've helped to track the movements of native groups. It could've helped to root out loyalists still dangerous to American independence.
The only acceptable opinion today should be that slavery of all stripes, practiced both before the emancipation proclamation, as well as today in both prison settings and trafficking, is abhorrent.
Defendants trying to exclude ALPR evidence often invoke Carpenter v. U.S. (or U.S. v. Jones, but that’s questionable because the majority decision is based on the trespass interpretation of the 4th Amendment rather than the Katz test). Judges have not generally agreed with defendants that ALPR (either the license plate capture itself or the database lookup) resembles the CSLI in Carpenter or the GPS tracker in Jones. A high enough density of Flock cameras may make the Carpenter-like arguments more compelling, though.
Yeah, I don't think capturing your license plate at a light falls afoul of Carpenter, but aggregating timestamped records of your license plate all over town to build a complete picture of your movements probably does.
idk that the government had first amendment rights… like any private citizen can record, but 1a doesn’t immediately mean the government can do anything, right?
If that was the case then you should wonder what Descartes would think. What Derrida or Baudrillard would think. We both know it’s not about that though.
Wondering what the people who created the government think of the current government is massively different than wondering what either of two French philosophers who never participated in statecraft born 150 years later thinks.
It is perfectly normal to wonder what the architect of a system thinks of the current system, and entirely separate from wondering what a pair of unrelated Frenchman think of that system. Even if they are just “some ancient dead old dudes”.
These guys made a constitution that says all men are free, except for slaves and women because they’re obviously not men. This led to a civil war just a couple decades later. I think it’s pretty clear that they didn’t really know what they were doing. In fact, that’s why they gave you the tools to change the laws of the country.
I’ve done both those things! Your obsession with what some half dead geezers from 300 years ago is a huge part of what makes the country a horrible place to live and a horrible influence on the world
From what I understand these systems are legal because there is no expectation of privacy in public. Therefore any time you go in public you cannot expect NOT to be tracked, photographed, and entered into a database (which may now outlive us).
I think the argument comes from the 1st amendment.
Weaponizing the Bill of Rights (BoR) for the government against the people does not seem to align with my understanding of why the Bill of Rights was cemented into our constitution in the first place.
I wonder what Adams or Madison would make of it. I wonder if Benjamin Franklin would be appalled.
I wonder if they'd consider every license plate reading a violation of the 4th amendment.