In October 2024, Soyfer and the Institute for Justice filed a lawsuit against Norfolk, as well as the city’s police department and its chief of police, Mark Talbot, over the Norfolk PD’s use of automatic license plate readers, or ALPRs, a type of camera that collects time-stamped, identifying information from passing vehicles that can then be entered into an interjurisdictional database.
Although sometimes portrayed as less intrusive than other surveillance technologies like facial recognition or CCTV systems, ALPRs can be used to track vehicles, monitor the associations of drivers, and learn the intimate details of a person’s life.
As Soyfer pointed out, “the whole point of a license plate number is to identify the registered owner of a car.” Hence, arguments that law enforcement is simply collecting information on vehicles as opposed to people should do little to assuage concerns that ALPRs are a form of mass surveillance.
According to Soyfer and the IJ’s October 2024 complaint, Norfolk’s ALPR program makes it “functionally impossible” for people in Norfolk “to drive anywhere without having their movements tracked, photographed, and stored in an AI-assisted database that enables the warrantless surveillance of their every move.”
“Right now,” however, said Soyfer, “[the courts] ask if something is a search by asking if it infringes on a subjective and reasonable expectation of privacy – but the Fourth Amendment doesn’t say anything about privacy.”
“At the founding,” said Soyfer, “a search was just purposeful investigative conduct.”
Under the test Soyfer and his colleagues propose, the courts would ask whether a surveillance program or other government search constitutes purposeful investigative conduct, whether it violates personal security, and whether it is reasonable.
Applying this standard to Norfolk’s ALPR program, Soyfer said, “the whole point of this program is to investigate” and “part of your personal security is your movement from one place to another.”
As for whether the program is reasonable, Soyfer noted, the term “reasonable” was “kind of a term of art at the founding” meaning a “violat[ion] of a common law search and seizure rule that existed at the founding.”
I love it!! Someone is fighting back against the compete surveillance of everybody by the police using the constitutional definition of a search and seizure. They want to make the police get a warrant to do any surveillance of the general population using the standard definition for a warrant needing specifics. If this can get to the SCOTUS there is a chance that they can put this in effect, thus, making mass surveillance next to impossible. Hooray!! We will not be like China!