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by nateb2022·1mo ago·view on hn ↗
> Can the police take pictures of every car they see and use that to determine your travel history?

You conflate the generally unremarkable act of taking a picture of a single car in public with the indiscriminate collection of photos of all vehicles. The former is a constitutional, isolated observation. The latter is a search, since in toto it reveals personal information.

> If the police don't have the expertise to maintain such a network can they pay a third party to do so?

May the police pay a third party to execute warrantless searches?

2 comments
In the 1760s there was something called a writ of assistance, which allowed British officers to search any location for smuggled goods without specific suspicion.

The Framers of the Constitution drafted the Fourth Amendment in direct response to these abusive general warrants, protecting against the exact kind of arbitrary power that placed "the liberty of every man in the hands of every petty officer." (John Adams)

Moreso, Adams maintains:

  Writs in their nature are temporary things. When the purposes for which they are issued are answered, they exist no more; but these live forever; no one can be called to account...

  But these prove no more than what I before observed, that special writs may be granted on oath and probable suspicion. The act of 7 and 8 William III that the officers of the plantations shall have the same powers, etc., is confined to this sense; that an officer should show probable ground; should take his oath of it; should do this before a magistrate; and that such magistrate, if he think proper, should issue a special warrant to a constable to search the places.
As Justice Sotomayor noted in United States v. Jones, logging a vehicle's public movements "reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." An action revealing all this is ipso facto a search; and Flock performs this search in the very absence of a specific warrant that Adams so vehemently opposed.
US v Jones was in the context of placing an actual recording device on an individual vehicle, which seems dramatically distinct from observing every passing vehicle and recording what you saw. Police cars already do this to some extent with ALPR, scanning for plates that have been reported stolen.

https://www.leonardocompany-us.com/lpr/blog/new-technology-h...

> US v Jones was in the context of placing an actual recording device on an individual vehicle

You are focusing exclusively on Justice Scalia's opinion. Five other Justices provided two separate concurrences in that same case, including Alito's:

  society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.
I appreciate that quote. My take was indeed founded on the majority opinion, which holds out non-physical intrusions as a separate issue that the verdict did not reach.

"It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question."

> You conflate the generally unremarkable act of taking a picture of a single car in public

I didn't say anything about a single car. Can the police department post police officers on every street corner and instruct them to record license plate numbers for every car they see? Would that constitute a search and if so a search of what exactly? If that's not a search why would a police-sanctioned camera be any different? I'm genuinely interested in understanding the distinction.

I'm not in love with the encroaching mass surveillance society but in terms of privacy in public there is little in the US by right.

> Can the police department post police officers on every street corner and instruct them to record license plate numbers for every car they see? Would that constitute a search and if so a search of what exactly?

Let me quote myself on this:

> As Justice Sotomayor noted in United States v. Jones, logging a vehicle's public movements "reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." An action revealing all this is ipso facto a search.

> I'm not in love with the encroaching mass surveillance society but in terms of privacy in public there is little in the US by right.

Suggesting that a citizen possesses "little privacy in public by right" is to stand the American constitutional order squarely on its head. You have a very Eurocentric understanding of rights, as if they're concessions by the king/government to the people. We do things the opposite way.

The enumeration of certain rights shall not be construed to deny or disparage others retained by the people (Ninth Amendment). Further, the Tenth Amendment explicitly reserves powers not delegated to the government to the states or to the people. What's your proposed basis, historic or constitutionally, granting the state the power to aggregate people's location history? The burden does not fall on the citizen to produce a right not to be monitored; it rests entirely on the state to demonstrate the authority to monitor.

> What's your proposed basis, historic or constitutionally, granting the state the power to aggregate people's location history?

Is the executive empowered to enforce laws? Is recording observations a function of law enforcement? Society recognizes things like "plain view" in that if an officer is legally in a place and can see illegal activity they may act on it. So it would follow that they can record their observations about suspected illegal activity and legal activity alike (because suspected illegal activity might actually be legal in fact).

So if police can observe things freely and they can record their observations, well can't police departments store and search through police records?

The state will take for itself power that the people have but do not wield.

> So if police can observe things freely and they can record their observations, well can't police departments store and search through police records?

This is unnecessarily reductive; if we reduce all action enough we can justify anything as simply continuous 1 centimeter movement; e.g. grand theft would be innocently grasping an object in a store, and then a series of 1 centimeter movements which you could independently justify as "freedom to move."

We understand complex actions to have complex consequences, and the aggregation of vehicular data is itself a search, which by our laws requires a warrant. Jurisprudence evaluates the totality of an act and its consequences.

> The state will take for itself power that the people have but do not wield.

The Framers of the Constitution would understand this idea as tyranny.