The Constitution does not contain an explicit, general right to privacy. Instead, many of the privacy protections people enjoy have been inferred from several constitutional provisions, most notably the Fourth Amendment’s protection against unreasonable searches and seizures. I would ask you, dear reader, how do you feel about that?
There is no blanket rule in our founding document stating that the government cannot watch you, whether in person or through modern surveillance technology. Instead, the Supreme Court has recognized that citizens possess a “reasonable expectation of privacy.” But there is no fixed, permanent definition of what society should consider reasonable. In navigating this gray area, we must keep one fundamental truth in mind: Rights are a constraint on governmental power; they are not a reward for compliant behavior.
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To understand how fragile this protection is, we have to look at its origin. Our modern legal standard for privacy stems from the Supreme Court’s 1967 decision in Katz v. United States. In that case, the FBI attached an electronic listening device to the outside of a public telephone booth to monitor a suspected illegal gambling operation. The court ruled in favor of the citizen, declaring that “the Fourth Amendment protects people, not places.” It established the principle that when a person closes the door to a phone booth, they have a reasonable expectation of privacy.
That decision was a landmark victory for the era of rotary phones, but its framework is increasingly strained by today’s technology. The law was developed to address targeted surveillance of a single suspect. It never envisioned a world of automated cameras, interconnected databases, machine learning, and systems capable of tracking millions of people simultaneously. Under the traditional Katz analysis, courts have often held that because you are driving on a public street, you generally have a diminished expectation of privacy in what anyone can plainly observe. But there is a profound difference between a police officer noticing your car at one intersection and an automated surveillance network that remembers everywhere you’ve driven for months or years.
Consider a thought experiment. Imagine it is 1775. British authorities station sketch artists along every major road in the colonies. Every rider, horse, carriage, and wagon is carefully drawn, the time and location recorded, and each sketch filed away for future reference. Loyalists might have accepted the practice as a reasonable measure of order, though perhaps with some unease. Patriots, however, would likely have viewed it as another instrument of imperial control. Ordinary colonists, regardless of political allegiance, might simply have wondered why the crown believed it necessary to keep records of everyone’s travels. Both sides employed spies during the Revolution, but no network of spies possessed perfect memory or operated every hour of every day. Being seen in public is not the same as consenting to have your movements permanently cataloged.
Today’s surveillance technologies have quietly shifted the balance. Rather than requiring the government to justify why broad monitoring is necessary, citizens increasingly find themselves expected to explain why they deserve to be left alone. Governments frequently defend expanded surveillance by appealing to public safety. In some situations, that argument is persuasive. Is it reasonable to install a standard traffic camera at an intersection with a documented history of fatal accidents to record a red-light runner? Certainly. That is a localized, targeted tool reacting to a specific public safety hazard. It captures an isolated event, serves its immediate purpose, and ideally vanishes — though in practice, even this data is often stored far longer than necessary.
But should a web of highly specialized cameras be monitoring every major roadway throughout your neighborhood, not to watch traffic safety, but to catalog who passes by?
That is a question each of us must answer.
Many of these neighborhood surveillance systems, such as Flock Safety cameras, are not simply recording traffic. They automatically capture license plate numbers, vehicle color, make, model, distinguishing features such as roof racks or political bumper stickers, and the precise date, time, and location of every observation. That information becomes part of a searchable database that can be retained and shared among participating law enforcement agencies. While these systems do not readily identify the driver, they do something nearly as powerful: They build a detailed record of where a particular vehicle has traveled, when it traveled there, and, by extension, the routines of the person behind the wheel.
There is little doubt that automated license plate reader systems have helped recover stolen vehicles, locate missing persons, and identify criminal suspects. Those are legitimate public safety benefits. But the real question is not whether these systems have investigative value. It is whether those benefits justify the routine collection and retention of travel data on millions of people who are not suspected of committing any crime.
I would ask government officials whether they would feel the same way about this “safety” measure if Flock cameras were installed at every public polling place during an election. Or perhaps outside the district offices of Democratic and Republican members of Congress to automatically log every visitor, volunteer, and supporter entering the building. After all, the same rationale could be offered: protecting voters, public officials, and the democratic process. Yet most people would instinctively recognize that such a system would create an infrastructure for political surveillance rather than public safety.
Many voters would rightly view that kind of monitoring as a form of voter suppression or intimidation. A community government may act with the best of intentions, but built surveillance networks inevitably succumb to function creep. If a system can be perverted, history almost guarantees someone will find a way to do it. If automated tracking around polling places threatens the free exercise of voting rights, then why should automated tracking throughout our neighborhoods — where algorithms can record our daily movements and even catalog the political messages displayed on our vehicles — be viewed differently?
Today’s exception has a habit of becoming tomorrow’s standard. History has shown that government programs, even those introduced as temporary responses to immediate concerns, have a remarkable tendency to expand their footprint and endure long after the original justification has faded. When we trade broad amounts of personal autonomy for localized peace of mind, the trade is rarely temporary.
Freedom has never depended upon the impossibility of observation. It has depended, in large part, upon limits on the government’s ability to intrude into private life. A passing police officer notices your car and then moves on. An automated surveillance network creates a permanent record of that observation. The Constitution was written in an era when governments were naturally constrained by the limits of human observation and recordkeeping. Modern surveillance technologies and massive searchable databases have eliminated many of those practical limitations.
POLICE SURVEILLANCE IS NOT JUST FOR EMERGENCIES, NO MATTER WHAT THEY SAY
By allowing the state to create a permanent record of ordinary citizens’ movements, mass surveillance quietly reverses one of our most foundational legal principles. A common defense of these systems is that innocent people should have no objection to a camera recording their normal activities. But that argument entirely misunderstands the purpose of constitutional liberty. Citizens are presumed innocent and are entitled to due process whether or not they are ever accused of a crime.
When the government collects, indexes, and preserves the daily movements of millions of citizens just in case they become relevant someday, it fundamentally treats every citizen as a permanent, potential suspect. Freedom cannot coexist with an infrastructure built on preemptive surveillance and suspicion.
Andrew Moore is a small-business owner and author of the Primus Aeternus series.
