We have seen enormous progress in information technology thanks to the twinned advances of miniaturization and digitization. We have surrounded ourselves with digital sensors that easily capture and store information, making it available for transfer and processing. The benefits are tremendous, but these advances also come with costs.
Privacy costs are one. Our communications, health information, financial information, and movements are all captured and digitized. Directly or through inference, that puts troves of detail about our private lives at risk. And it threatens liberty when such private information is in the hands of the most powerful institutions.
Today Americans’ instinct for maintaining the American experiment has been given voice through the debate about Flock cameras. With public opinion urging us on, I offer the Fourth Amendment as a framework for thinking about this problem.
We can recognize digital seizures and digital searches, placing them under the same constitutional control as their analog counterparts. Flock cameras are arguably a seizure of Americans’ information. More clearly they are a search of and for Americans’ cars, conducted all of the time. By close inference, they are a search for all drivers, all of the time.
That leaves the question of whether operating Flock and similar camera systems is reasonable. The Fourth Amendment offers several guideposts suggesting they are not, but the privacy-security tradeoff invited by the Fourth Amendment is always up for revision.
In response to Flock camera systems, there has been litigation, which will inform the debate. You are hearing from a leader on legislation to control these systems in New Hampshire. There are numerous ways that Flock and similar systems can be given guardrails, which may make them reasonable in both constitutional and ordinary terms.
While you address the Flock issue directly, I recommend that you also work to control the parallel data streams that can be just as revealing as mass surveillance through Flock cameras. New Hampshire again may offer a model in the Common Law Privacy and Consumer Protection Act, which would recognize ownership of private data, and thus constitutional protection for it, even when stored with third parties such as cloud service providers.