The Kentucky General Assembly passed a new law this year adding regulations on automated license plate readers (ALPRs), but lawmakers in a committee hearing last week signaled bipartisan support for going further.
State lawmakers referenced a growing backlash against the cameras and concerns over mass surveillance among their constituents, which have largely centered around Flock Safety — the company that dominates the ALPR market.
The committee heard testimony in support of the cameras from law enforcement and a Flock executive, citing recent news that such surveillance led to the arrest of two teenagers in the fatal shooting of Jefferson County Public Schools student Dannady Greene at her bus stop last month.
But there have also been a string of local stories in recent weeks showing the threat posed by law enforcement abusing Flock cameras, which are the increasing targets of vandalism.
Within the span of a week, officers in Shively and southern Indiana were both arrested for stalking ex-girlfriends by conducting thousands of Flock searches for their license plates. Also in Louisville, an officer who was suspended for two days for sharing his Flock login credentials with a federal agent for unauthorized immigration-related searches is now under investigation again for allegedly searching for the vehicle of a colleague.
Elizabethtown Police Chief Jeremy Thompson told lawmakers that “a few bad actors” in law enforcement shouldn’t give the technology a black eye, calling it the best advancement in public safety in decades.
“Technology in general can be misused at any level by any person,” Thompson said. “So I don't know that a knee-jerk reaction to remove the technology would be the most prudent for us.”
Thompson said his city’s Flock cameras have solved numerous crimes and lawmakers should not listen to the “fiction” pushed by online critics.
“Social media is toxic on a variety of levels,” Thompson said. “It's been toxic on this particular topic, and people are making this technology out to be what it's not designed (for), or what it's not in reality.”
The technology was also defended by Kevin Kane, Flock’s director of government relations. He said the company does not use facial recognition and that customers determine what information they share, adding that they have new auditing tool features.
Providing a counter view were policy experts with two groups often on opposite sides ideologically — the ACLU of Kentucky and the Cato Institute, a libertarian think tank.
Kate Miller of the ACLU said the rapid proliferation of both government and private cameras “presents a unique and dangerous opportunity to engage in mass surveillance.”
Praising the steps taken with the passage of House Bill 58 earlier this year — limiting data retention to 90 days and creating a misdemeanor for misusing an ALPR — Miller added that so much has changed so quickly with the technology that “there’s already a clear need for additional guardrails and protections.” She said lawmakers should consider a moratorium on such cameras, or at least significantly lowering the data retention timeframe and allowing independent agencies to do routine audits of their usage.
Laura Bondank-Harmon of the Cato Institute warned that a recent Supreme Court decision — finding a warrant is needed to tap into geofencing databases — shows that Flock technology also likely violates Fourth Amendment rights unless a judicial warrant is approved for such searches.
First among her recommendations for lawmakers was a new law to require such a judicial warrant before an officer searches their own ALPR database, with exceptions for immediate threats, like Amber Alerts.
“There's no way to know whether an officer running a narcotic search is investigating drugs or tracking a former romantic partner,” Bondank-Harmon said. “Officers should have to show probable cause and particularity, and a judge should decide whether a search is justified.”
She also called for laws allowing Kentuckians to find out if their plates have been queried by an agency (excepting active investigations), requiring government agencies to publish the location of their cameras (which Louisville has refused to do) and shortening the data retention period.
Several Republican lawmakers relayed the concerns of their constituents, including Rep. Jennifer Decker of Waddy, who says people have to rely on agencies deciding to protect their rights.
“As these cameras multiply and as they become more technologically available for being searchable and shareable, people are concerned that we could already be well down the road toward the kind of surveillance state that George Orwell warned about in his dystopian novel 1984,” Decker said.
GOP Rep. T.J. Roberts of Burlington noted that while Kane said Flock doesn’t use facial recognition, the company has had patents approved that would do just that. WIRED recently reported that Flock has now built an artificial intelligence tool for police to identify drivers and anyone fitting a written description.
Roberts, as well as Democratic Rep. Nima Kulkarni of Louisville, pressed Kane on whether Flock would comply with any new state law, regulation or court order on their cameras.
“We follow what the law says,” Kane said. “We are a private company. We are not the government. We respond and we build to what the law says.”
Two Republicans came to the defense of police using Flock cameras, including Rep. Jared Bauman of Louisville, who said “we do need to tone down some of the rhetoric as it relates to law enforcement and how they're treated so harshly in certain circumstances.”
Sen. Danny Carroll, a former police officer from Paducah, said the cameras are “a tool that will save lives and solve crimes” and should not be condemned. He added that he was skeptical of proposals to make ALPR searches conditional on a judicial warrant.
“If you're doing real-time surveillance, what would be the difference between an officer following a car, or if it's on a camera, to following it with the cameras?” Carroll asked. “So in instances like that, would I see a need for a search warrant? No.”
Rep. Jason Nemes of Louisville, a member of House GOP leadership, highlighted the Flock camera’s success in detecting the teenagers accused of murdering Dannady Greene, but said it was reasonable for a warrant to be required for searches.
“I know the police probably don't like that, but I don't know why we wouldn't require a warrant, unless there's exigent circumstances,” Nemes said. “That's the way we make sure our Fourth Amendment isn't destroyed.”
Agreeing with Nemes on that point was someone with a key position — Rep. Daniel Elliott of Danville, the GOP chair of the House Judiciary committee that determines what bills come up for a vote there.
“I think that some reasonable safeguards and guardrails, such as a warrant requirement with exigent circumstances, would probably be something I could support,” Elliott said.
Nemes later added that he would support a bill allowing the public to see if their plates were being searched, but wasn’t yet sure if legislation with those provisions would have enough support in Republicans’ supermajority caucus.
The backlash against Flock cameras has also extended to Kentucky’s federal delegation. Republican Congressman Thomas Massie recently filed the “Flock-Off Act,” which would ban federal funding from being used to buy or operate ALPRs.
