By Charles C. W. Cooke
Friday, August 28, 2026
On today’s episode
of The Editors, we discussed Flock cameras. I said that they made me
uncomfortable — not because they “don’t work,” but because they work all too
well. In other words: While I concede that they will likely reduce crime, I do
not consider that to be the end of the matter. Lots of things would
reduce crime if implemented. That doesn’t mean that those things are
necessarily a good idea in a free republic.
One of my co-panelists then suggested that Flock cameras
present a Fourth Amendment problem because, in order to benefit from their
data, law enforcement is required to use a database, which constitutes a
“search.” Despite my general skepticism toward them as a matter of public
policy, I disagreed with this position. We began to argue about it, but
unfortunately, we ran out of time. So I thought I’d complete my thought here.
Simply put: I cannot see a Fourth Amendment problem with
Flock cameras, because the data that they collect — and thus the data that is
subsequently accessed by the police — is, and always was, presumptively
public. The Fourth Amendment holds that:
The right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to
be seized.
Public roads do not fall under this description. Imagine,
if you will, that instead of a series of cameras, a series of police
officers were stationed at various points along a public route and tasked with
writing down the license plates of all the cars that went by. Obviously, none
of them would need a warrant to do this. Then imagine that, having collected
this information, they went back to the station and collated it into a book.
Would another officer looking at that book constitute a “search”? I cannot see
how it would. Police officers are allowed to look at whatever they want in
places, such as public roads, where the citizenry lacks a
reasonable expectation of privacy. And having looked at whatever they want,
those same officers are allowed to share with one another what they have found.
If the Flock cameras were being used outside of the
public roads, that would be a different story. If, for example, those cameras
were being secreted within private homes, or attached surreptitiously to
private cars, or put in every hotel room in Nebraska, that would present a
problem. So, too, if the cameras boasted X-ray vision or could detect heat
signatures, and they were being used to peer into private property. But they
aren’t.
Nor can the mere act of consulting a database be the key
variable. What matters, surely, is what’s in the database? The police
are not allowed to read my emails without a warrant, because my emails are part
of my “papers” and “effects.” But the police can legitimately read emails that
I send them, or listen to speeches I make in public fora, or even track
my movements while I am outside. If, for example, my local police department
were to compile a database that contained everything I have ever said in
public, that wouldn’t magically become a Fourth Amendment problem simply
because that database was searchable. The violation attaches to the nature of
the contents, not to the act of compiling information per se.
If the Fourth Amendment did outlaw Flock cameras, it
would not bother me. I find them creepy, and I am not pleased that, because the
internet has annihilated distance, they enable police departments thousands of
miles from my own to follow me around as I drive. Unfortunately, though, I
really cannot see how the Fourth Amendment applies here, and for me, as a
constitutional originalist, that is the end of that story. Given its recent
jurisprudence, I expect that the courts will agree with my suspicions, and that
being so, those of us who do not like the growing surveillance state are going
to have to give up on the hope of being saved by judges and do the work via the
usual political channels.
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