I really hope this doesn’t turn into yet another case of judges looking at irrelevant facts when making decisions.
The fourth amendment does not say “private conversations,” so when police started tapping phones, the courts focused on whether the phone tap physically intruded on somebody’s house, papers, or effects. Police apparently could tap phone conversations by watching reflections on a nearby window, and the fourth amendment didn’t apply because there was no physical intrusion. The “reasonable expectation of privacy” test come from Katz v. US ( https://supreme.justia.com/cases/federal/us/389/347/ ) where the Supreme Court realized that whether there was a physical intrusion was irrelevant.
To its credit, the article covers all the reasons why the Chatrie decision won’t be determinative for this case.
But the headline and narrative paint a way too optimistic (if you’re anti-Flock) picture of Chatrie’s impact.
In particular the search identified by Chatrie (Google’s database of expected-private location records, including movement in the home and other private spaces) has almost no analog in third-party-owned recordings of public movement.
But Chatrie found that the geofence was unconstitutional because of the wide dragnet which included people not suspected of crimes, not because those people were in private spaces:
> The Court held that police conducted a Fourth Amendment search when they obtained Chatrie's location data, because, as the opinion put it, "an individual has a reasonable expectation of privacy in his cell-phone location information."
The analogue with Flock is pretty clear then:
> Just as important as the holding is the reasoning: the Court rejected the government's fallback argument that the search was fine because it only pulled a narrow, time-limited slice of a much larger dataset. Once the Fourth Amendment applies, the majority reasoned, it doesn't matter how small a bite investigators took out of an all-encompassing database.
Not sure I agree. The only difference I see is the idea that there's no expectation of privacy while driving on public roads. That's potentially a huge difference, certainly, but I don't think it makes the negative outcome here quite as likely as you think.
Otherwise, it's the same: Google's database is a third-party-owned record of people's movements in public, and Flock's database is a third-party-owned record of people's movement in public.
The ruling in Chatrie had nothing to do with an expectation of privacy, or lack thereof. It was about the dragnet nature of the surveillance. And in that respect, I don't see any meaningful difference between Flock's and Google's systems.
The very first holding of the majority opinion by Kagan:
Held: Police officers conducted a Fourth Amendment search when they
acquired Chatrie’s location data from Google because an individual has a reasonable expectation of privacy in his cell-phone location information.
Note the possessive “his”. Crucial to the case, this was held to be the individual’s data, not the third-party’s.
Why would the expectation of privacy be different depending on which spectrum of light the information was captured in (visible vs radio)?
In both scenarios, the data is held by a private third party and a person generates this data pretty much by-default.
This is the relevant bit:
In Carpenter, this Court held that accessing cell-site location
information (CSLI) constitutes a Fourth Amendment search because
“individuals have a reasonable expectation of privacy in the whole of their physical movements,” 585 U. S., at 310. The Court reasoned that CSLI provides a “detailed” and “encyclopedic” portrait of a person’s whereabouts, id., at 309, and, with that, “an intimate window into a person’s life,” id., at 311. Because people “compulsively carry” their cell phones “all the time,” the Court explained, a cell phone “tracks nearly exactly the movements of its owner,” and thus “faithfully follows” him not only through “public thoroughfares [but] into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”
This question seems preposterous on its face. If you walk around in public wearing a t-shirt with text on it, there's a reasonable expectation that people will read it. Specifically because it reflects light.
This is implying the contents of the data are relevant. They're not. What's relevant is only that the government ends up with a very complete picture of a person's whereabouts without a warrant. That is what is disallowed.
I'm going to predict right now that this will boil down to "automobiles are not individuals" and automobiles do not get 4th amendment protections.
Automobiles are not cellphones, and the state is free to regulate automobiles. It could mandate tracking devices in all cars, if there was political will.
There's nothing special about any particular technology at all. The question is whether people have an option to generate the data for a third party (Google, Flock, or cell tower operators) and then the sensitivity of that resulting data.
Carpenter is pretty simple: If you by virtue of existing in the modern world produce a bunch of super sensitive data that third parties now have, then those third parties aren't allowed to just give the government that data.
Is Flock really 3rd party? Yes, they're a private entity, but they largely owe their existence to government contracts. They maintain their database on behalf of various governments. Their primary sales pitch is to law enforcement. It feels like something completely different than Alphabet's or Meta's databases of person/user data.
I do agree that Flock is also not the same as the database of cell phone location data that Verizon or Apple or whoever else might maintain.
It's somewhere in the middle, IMO. At least to my non-lawyer brain.
Yes, while I'm not a fan of fully networked, recorded, ubiquitous license plate tracking, it is quite different than the cell phone.
License plate number is a registered identifier mandated to be fully plainly visible, with that identifier tied to a registered individual; compared to cell phone which has identifiers, sure, but they're not registered to an individual necessarily, and not mandated to be plainly visible, rather only "visible" as a means of service provision.
they have little respect for precedent which they agree is wrong, which is a far better standard than letting terrible decisions stand because tradition or because popular.
It is self-evident that a very narrow examination of a very narrow data set is different than the 24/7 unlimited surveillance of everything. The law should support this basic proposition no matter where they decide the dividing line is. Flock is on the wrong side of an open air prison. I hope they lose.
Here's a reminder that a Montana-LLC registered car is a legitimate privacy-preserving use case and not the tax-evasion that Straw Manners and Ad Hominem attackers make appear to be.
You can still pay your use tax and be a good citizen, and in fact, its probably a better demonstration of your duties as a citizen to protect the right to privacy and say to your local governments that have a history of abusing and selling vehicle registration data to 3rd parties that you do not tolerate that.
Happy to share more, the sites for Montana registration can be shady but the dirt legal one is great.
Interestingly I was watching a body cam where an off duty cop road raged punched a driver.
During the investigation the investigating officer had become worried that the assailant would use police resources to further track and harass the victim.
Luckily the guy was driving a company vehicle that did not track to his address.
In California, at least, if you are a resident of the state, you are legally required to register cars garaged in California with the California DMV. (It's actually a little ambiguous in an annoying way; even if you have a car that's garaged out of state, simply bringing it to CA for a weekend and driving it around can potentially trigger the CA registration requirement, again, assuming you are a CA resident.)
I'd be surprised if most other states don't have similar vehicle laws.
> Here's a reminder that a Montana-LLC registered car is a legitimate privacy-preserving use case and not the tax-evasion that Straw Manners and Ad Hominem attackers make appear to be.
I mean, it’s both, right? You’re definitely getting a tax advantage compared to a lot of areas of the country. And how is insurance going to work?
I live in North Dakota and the cost of maintaining a Montana LLC would be more than my yearly registration fee. Something I started doing is getting new plates every year so historical data of my movement based on plate number only goes back a year.
Tax advantages are not tax evasion. Otherwise, why bother with doing anything that is tax advantaged if when anyone calls it tax evasion or accuses someone of a crime the accused just give up and takes guilt (assumption of guilt over innocence) paying whatever is asked?
Insurance is a bit tricky though I've heard it's simple. Most companies don't ask or inquire about where the cars registered, and neither do repair shops or parts of the claim process inquire into this. If you're uncomfortable with this, you can DYOR and check what happened for claims if a driver who's personally insured is driving a vehicle registered under an LLC/company. I think it isn't true that just because a vehicle is registered by a company, it cannot be used for personal purposes or that insurance companies would make claims more difficult (though check yourself and I'm happy to know what you find)
I really hope this doesn’t turn into yet another case of judges looking at irrelevant facts when making decisions.
The fourth amendment does not say “private conversations,” so when police started tapping phones, the courts focused on whether the phone tap physically intruded on somebody’s house, papers, or effects. Police apparently could tap phone conversations by watching reflections on a nearby window, and the fourth amendment didn’t apply because there was no physical intrusion. The “reasonable expectation of privacy” test come from Katz v. US ( https://supreme.justia.com/cases/federal/us/389/347/ ) where the Supreme Court realized that whether there was a physical intrusion was irrelevant.
To its credit, the article covers all the reasons why the Chatrie decision won’t be determinative for this case.
But the headline and narrative paint a way too optimistic (if you’re anti-Flock) picture of Chatrie’s impact.
In particular the search identified by Chatrie (Google’s database of expected-private location records, including movement in the home and other private spaces) has almost no analog in third-party-owned recordings of public movement.
But Chatrie found that the geofence was unconstitutional because of the wide dragnet which included people not suspected of crimes, not because those people were in private spaces:
> The Court held that police conducted a Fourth Amendment search when they obtained Chatrie's location data, because, as the opinion put it, "an individual has a reasonable expectation of privacy in his cell-phone location information."
The analogue with Flock is pretty clear then:
> Just as important as the holding is the reasoning: the Court rejected the government's fallback argument that the search was fine because it only pulled a narrow, time-limited slice of a much larger dataset. Once the Fourth Amendment applies, the majority reasoned, it doesn't matter how small a bite investigators took out of an all-encompassing database.
As I understand the ruling, the Court decided these location records were akin to a diary or a personal photograph.
That’s what triggered the essential element of an expectation of privacy, from which the fact of a search was established.
Totally absent in this case, as far as I can tell.
No, they argued these records are akin to a record of the person's travel history.
> As Google puts it, and no one seriously disputes, Location History serves as a “diary” or map “of a person’s travels.”
"Diary" is a red herring here. They're referring to a location log, just like what Flock produces.
Not sure I agree. The only difference I see is the idea that there's no expectation of privacy while driving on public roads. That's potentially a huge difference, certainly, but I don't think it makes the negative outcome here quite as likely as you think.
Otherwise, it's the same: Google's database is a third-party-owned record of people's movements in public, and Flock's database is a third-party-owned record of people's movement in public.
The ruling in Chatrie had nothing to do with an expectation of privacy, or lack thereof. It was about the dragnet nature of the surveillance. And in that respect, I don't see any meaningful difference between Flock's and Google's systems.
The very first holding of the majority opinion by Kagan:
Held: Police officers conducted a Fourth Amendment search when they acquired Chatrie’s location data from Google because an individual has a reasonable expectation of privacy in his cell-phone location information.
Note the possessive “his”. Crucial to the case, this was held to be the individual’s data, not the third-party’s.
Why would the expectation of privacy be different depending on which spectrum of light the information was captured in (visible vs radio)?
In both scenarios, the data is held by a private third party and a person generates this data pretty much by-default.
This is the relevant bit:
In Carpenter, this Court held that accessing cell-site location information (CSLI) constitutes a Fourth Amendment search because “individuals have a reasonable expectation of privacy in the whole of their physical movements,” 585 U. S., at 310. The Court reasoned that CSLI provides a “detailed” and “encyclopedic” portrait of a person’s whereabouts, id., at 309, and, with that, “an intimate window into a person’s life,” id., at 311. Because people “compulsively carry” their cell phones “all the time,” the Court explained, a cell phone “tracks nearly exactly the movements of its owner,” and thus “faithfully follows” him not only through “public thoroughfares [but] into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”
This question seems preposterous on its face. If you walk around in public wearing a t-shirt with text on it, there's a reasonable expectation that people will read it. Specifically because it reflects light.
This is implying the contents of the data are relevant. They're not. What's relevant is only that the government ends up with a very complete picture of a person's whereabouts without a warrant. That is what is disallowed.
No, it's not about the contents. It's the fact that the data is presented in full public view with the specific intention that it be read.
Nope, this is not an element whatsoever in the most relevant cases, being Carpenter and now Chatrie.
I'm going to predict right now that this will boil down to "automobiles are not individuals" and automobiles do not get 4th amendment protections.
Automobiles are not cellphones, and the state is free to regulate automobiles. It could mandate tracking devices in all cars, if there was political will.
Not if the Supreme Court says “no” after a successful challenge.
Chatrie was about Google’s personal location tracking feature in Android, not about carrier tower records.
Which is also irrelevant
There's nothing special about any particular technology at all. The question is whether people have an option to generate the data for a third party (Google, Flock, or cell tower operators) and then the sensitivity of that resulting data.
Carpenter is pretty simple: If you by virtue of existing in the modern world produce a bunch of super sensitive data that third parties now have, then those third parties aren't allowed to just give the government that data.
You mean to tell me I can’t just find a loophole to get around the intent of the law? But what about my profits??!?
I'm not sure that's quite as clear as you say it is. It could be "his" as in "about the person" rather than "belonging to the person".
The Fourth Amendment covers exclusively “their persons, houses, papers, and effects” so it has to be one of those.
This is not true.
For example, this would allow the government to wiretap anyone without warrant.
Katz v United States would be the place to start your research.
Is Flock really 3rd party? Yes, they're a private entity, but they largely owe their existence to government contracts. They maintain their database on behalf of various governments. Their primary sales pitch is to law enforcement. It feels like something completely different than Alphabet's or Meta's databases of person/user data.
I do agree that Flock is also not the same as the database of cell phone location data that Verizon or Apple or whoever else might maintain.
It's somewhere in the middle, IMO. At least to my non-lawyer brain.
Yes, while I'm not a fan of fully networked, recorded, ubiquitous license plate tracking, it is quite different than the cell phone.
License plate number is a registered identifier mandated to be fully plainly visible, with that identifier tied to a registered individual; compared to cell phone which has identifiers, sure, but they're not registered to an individual necessarily, and not mandated to be plainly visible, rather only "visible" as a means of service provision.
This court has had little respect for precedent so maybe an argument here is more about the fact that rulings like this one may become more likely.
they have little respect for precedent which they agree is wrong, which is a far better standard than letting terrible decisions stand because tradition or because popular.
It is self-evident that a very narrow examination of a very narrow data set is different than the 24/7 unlimited surveillance of everything. The law should support this basic proposition no matter where they decide the dividing line is. Flock is on the wrong side of an open air prison. I hope they lose.
This is pretty much how SCOTUS approaches the 4th Amendment, yes.
It's basically a continuous rebalancing of private vs government power, and new technologies cause more rebalancing.
Here's a reminder that a Montana-LLC registered car is a legitimate privacy-preserving use case and not the tax-evasion that Straw Manners and Ad Hominem attackers make appear to be.
You can still pay your use tax and be a good citizen, and in fact, its probably a better demonstration of your duties as a citizen to protect the right to privacy and say to your local governments that have a history of abusing and selling vehicle registration data to 3rd parties that you do not tolerate that.
Happy to share more, the sites for Montana registration can be shady but the dirt legal one is great.
Interestingly I was watching a body cam where an off duty cop road raged punched a driver.
During the investigation the investigating officer had become worried that the assailant would use police resources to further track and harass the victim.
Luckily the guy was driving a company vehicle that did not track to his address.
In California, at least, if you are a resident of the state, you are legally required to register cars garaged in California with the California DMV. (It's actually a little ambiguous in an annoying way; even if you have a car that's garaged out of state, simply bringing it to CA for a weekend and driving it around can potentially trigger the CA registration requirement, again, assuming you are a CA resident.)
I'd be surprised if most other states don't have similar vehicle laws.
And the CHP has a website where you can report violations.
I hear you bringing up 2 separate actions that can trigger a registration requirement.
1) Garaging a vehicle, for x days or more.
2) Driving a vehicle, for x days or more.
Have you looked into what the specifics are, and how they are triggered?
Poking some holes at this:
- Are you on the hook to register vehicles you don't own for actions (1) or (2)?
Consider two examples:
(a) you rent a vehicle,
(b) you drive or choose to house a friends' vehicle.
From what you've stated, logically, anytime you rent a vehicle or operate or house a friends', you now are asked to register it.
Do you think this is accurate? And if so, do you think it would hold in court of law?
> Here's a reminder that a Montana-LLC registered car is a legitimate privacy-preserving use case and not the tax-evasion that Straw Manners and Ad Hominem attackers make appear to be.
I mean, it’s both, right? You’re definitely getting a tax advantage compared to a lot of areas of the country. And how is insurance going to work?
I live in North Dakota and the cost of maintaining a Montana LLC would be more than my yearly registration fee. Something I started doing is getting new plates every year so historical data of my movement based on plate number only goes back a year.
Tax advantages are not tax evasion. Otherwise, why bother with doing anything that is tax advantaged if when anyone calls it tax evasion or accuses someone of a crime the accused just give up and takes guilt (assumption of guilt over innocence) paying whatever is asked?
Insurance is a bit tricky though I've heard it's simple. Most companies don't ask or inquire about where the cars registered, and neither do repair shops or parts of the claim process inquire into this. If you're uncomfortable with this, you can DYOR and check what happened for claims if a driver who's personally insured is driving a vehicle registered under an LLC/company. I think it isn't true that just because a vehicle is registered by a company, it cannot be used for personal purposes or that insurance companies would make claims more difficult (though check yourself and I'm happy to know what you find)