First-Round Win Against Driver Surveillance Program

Great news from Norfolk, Virginia, where IJ scored an early win in a groundbreaking Fourth Amendment challenge to the city’s network of 172 automatic license plate readers (ALPRs). Deployed throughout Norfolk, these cameras capture cars’ license plates and key details, which are uploaded to a centralized database so law enforcement can track the vehicle over the past 30 days, no suspicion or warrant required. 

Norfolk’s cameras chronicle the entire driving population’s comings and goings. That’s creepy and un-American. But in moving to dismiss our case, the city argued that such constant surveillance could never amount to a Fourth Amendment “search.” Even if residents expected their movements to remain private, it said, those expectations were not societally reasonable. For support, the city cited a 40-plus-year-old case called U.S. v. Knotts, which held that “a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”  

Watch the case video!

But the law has changed in the decades since Knotts. Back in 2018, the U.S. Supreme Court held, contra Knotts, that persistent tracking can violate a reasonable expectation of privacy. And in 2021, the federal appeals court that covers Norfolk held that Baltimore’s flying an airplane to track people’s movements was constitutionally unreasonable. Norfolk’s ALPR cameras are equally unreasonable since they do from the ground what Baltimore was told it couldn’t do from the air. 

The court in Norfolk agreed. It held that, under modern Fourth Amendment case law, pervasive dragnet surveillance can be a “search.” And it credited our allegation that Norfolk’s ALPRs allow for the secret “monitoring and cataloging [of] the whole of tens of thousands of individuals’ movements over an extended period.” The case will now proceed to discovery, with a potential trial this fall—where IJ’s goal, of course, is to shut down Norfolk’s dystopian surveillance scheme. 

But more broadly, we want courts to reject the “reasonable expectation of privacy” model altogether. After all, the Fourth Amendment never mentions “privacy,” but it does talk about the right to be “secure.” That’s because the Framers enacted the Fourth Amendment to protect individuals and their property from arbitrary government intrusion. Yet in the 20th century, some figures tried to rewrite the Amendment’s purpose, conflating its protection against the prying eyes of government with the idea of personal privacy from private entities. In the 1960s, this interpretation led to the creation of the “reasonable expectation of privacy” test. 

Although the privacy model at one time was more protective of Fourth Amendment rights, it has proven to be problematic as society—and especially technology—evolves. And it’s easy to understand why: Under it, anything you voluntarily expose to the world loses constitutional protection. Your bank records, the phone numbers you dial, even your medical history; it’s all fair game. Historically, it would have been impossible for 172 officers to stand at street corners 24/7 to photograph and analyze every single car that passed. But Norfolk’s unblinking ALPRs make such dragnet surveillance cheap and easy. 

The “reasonable expectation of privacy” test demands that people forfeit their constitutional protections to participate in modern life. So along with demonstrating that Norfolk’s surveillance network is unconstitutional, we hope to persuade courts to abandon the flawed privacy framework and instead focus on what truly matters: the right to be secure from unwarranted government tracking and monitoring. By returning to the Fourth Amendment’s core principle of security, we can better protect citizens from the kinds of arbitrary governmental intrusions that inspired its adoption.

Rob Frommer is an IJ senior attorney and co-leader of the Project on the Fourth Amendment.