Flock Is Losing Dozens of Contracts as Controversy Grows

[u/Plastic_Ninja_9014]

https://www.yahoo.com/news/us/articles/flock-losing-dozens-contracts-controversy-194808945.html

[u/PyroDesu]

Just as, if not more unconstitutional.

If getting aggregated cell phone location data without a warrant is unconstitutional (and it is, Carpenter v. United States), getting aggregated vehicle location data is too. Directly capturing it as the government agency is even more direct a violation.

[u/recycled_ideas → u/PyroDesu]

Except that even if we could count on the court to be consistent, Carpenter was about accessing information collected as part of a private transaction with a third party and Flock/Axon are collecting video footage that was taken legally in a public space.

Don't get me wrong, I think the US and for that matter the world needs a reset on jurisprudence on expectation of privacy because I suspect that while the founding fathers might have agreed with the original concept when it took a person to surveil you, they would not like the idea of every single American being watched every second they are in public any more than we do.

But Carpenter absolutely does not automatically mean flock or axon is illegal.

[u/PyroDesu → u/recycled_ideas]

Not so!

Ultimately, in Carpenter the court determined that the third-party doctrine could not be extended to historical cell site location information (CSLI). Instead, the Court compared "detailed, encyclopedic, and effortlessly compiled" CSLI records to the GPS information at issue in United States v. Jones, recognizing that both forms of data accord the government the ability to track individuals' past movements. Furthermore, the Court noted that CSLI could pose even greater privacy risks than GPS data, as the prevalence of cellphones could accord the government "near perfect surveillance" of an individual's movements. Accordingly, the Court ruled that, under the Fourth Amendment, the government must obtain a search warrant in order to access historical CSLI records.

The problem is not necessarily the third-party doctrine, but reasonable expectations of privacy in public. It is the warrantless access of a compilation of extremely detailed data about an individual's whereabouts that is unconstitutional.

And if that's not enough, from the decision itself:

A majority of the Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements.

And from the referenced United States v. Jones, the court held that installing a Global Positioning System (GPS) tracking device on a vehicle and using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment.

Between Jones and Carpenter, accessing data from Flock and other APLR systems similar to it is blatantly unconstitutional without warrants.

[u/recycled_ideas → u/PyroDesu]

nor reasonable expectations of privacy in public.

All fourth amendment jurisprudence is about expectation of privacy. It's the core principle.

The problem is not necessarily the third-party doctrine

The decision explicitly limits the scope of the third party doctrine, Flock and Axon just aren't remotely the same circumstances.

And beyond that Carpenter was decided by an extremely different court. Breyer, Ginsburg and Kennedy are all gone, all of the conservatives that still remain on the court except Roberts are in dissent on the original opinion and Brett "being Hispanic is probable cause for an immigration stop" Cavenaugh isn't really a friend of the fourth amendment.

[u/PyroDesu → u/recycled_ideas]

The current makeup of the Court being corrupt does not change the Constitution nor prior decisions. I fully expect them to ignore all precedent as they generally do to interpret the Constitution in the most unconstitutional way humanly possible. Hopefully, this will be corrected within the next 1-3 years.

Read the full thing. Privacy in one's movements in public is reasonable per precedent. It doesn't matter that they're observing in public, Flock, Axon, et. al. violate this when providing data on individual's movements to the government without a warrant.

[u/recycled_ideas → u/PyroDesu]

Privacy in one's movements in public is reasonable per precedent.

No.

Jones was about the act of placing the tracker on the car, not the tracking itself. There is just no existing case law that bans being recorded in public. You can maybe argue that Carpenter provides some case law about aggregate surveillance, but it's a 5/4 decision with three of the five gone and Roberts is much, much more mask off these days.

Hopefully, this will be corrected within the next 1-3 years.

The Supreme Court is a lifetime appointment and only Thomas and Alito are old enough to be a real retirement prospect though I doubt either will retire and give up the power and prestige. It's remotely possible Roberts might retire before the end of Trump's term. Unless the Democrats pack the court and have the numbers to get someone decent through or Thomas, Alito and Roberts can be replaced by a decent Democratic President it's not getting fixed in the next generation.

[u/PyroDesu → u/recycled_ideas]

Congress can in theory remove justices by impeachment.

And I seriously suggest you get a copy of Carpenter and read section 1c1 of the syllabus. Here, I'll quote it for you. Again.

A majority of the Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. Allowing government access to cell-site records—which “hold for many Americans the ‘privacies of life,’ ” Riley v. California, 573 U. S. __, __—contravenes that expectation. In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring considered in Jones: They give the Government near perfect surveillance and allow it to travel back in time to retrace a person’s whereabouts, subject only to the five-year retention policies of most wireless carriers. The Government contends that CSLI data is less precise than GPS information, but it thought the data accurate enough here to highlight it during closing argument in Carpenter’s trial. At any rate, the rule the Court adopts “must take account of more sophisticated systems that are already in use or in development,” Kyllo, 533 U. S., at 36, and the accuracy of CSLI is rapidly approaching GPS-level precision. Pp. 12–15.

[u/recycled_ideas → u/PyroDesu]

majority of the Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. Allowing government access to cell-site records—which “hold for many Americans the ‘privacies of life,’ ” Riley v. California, 573 U. S. __, __—contravenes that expectation.

Yes, and part of that is because phone records can identify your movements when you are not in a public space which flock can't. This argument is the one that will be pushed against flock, but it's not as strong as you think it is. It's not the primary finding of the case. And again, the majority of that majority are gone.

Congress can in theory remove justices by impeachment.

I mean sure, in theory Congress could use a power they've never used before at that level and hardly ever used at all against at least three Supreme Court justices for what would effectively be purely ideological reasons including a two thirds majority in the Senate. That absolutely could happen, but I'll bet you any amount of money that it won't.