Near the Litchfield Church in September 2022, a car set off an automated license plate reader system alarm. The camera system, called Flock, told police the vehicle was stolen.
Police scrambled to find the driver in the historically affluent town. Once they reached the panicked driver, they discovered the Flock had strayed.
“The Flock camera read the plate wrong as AZ:074A45G when the plate actually read AZ:D74A5G,” wrote the officer, in the report.
It wasn’t the first time Litchfield Park had this happen. The December before saw Flock artificial intelligence make the same mistake. It also correctly alerted the police of a stolen vehicle where the plate was erroneously entered into the statewide MVD system that same month. The driver was detained and then released.
The system is connected to the National Crime Information Center, an FBI database. Any officer with access to Flock can set up an alert based on subjective suspicion. Additionally, police can be alerted if a suspect enters another jurisdiction with Flock cameras.
According to Chad Marlow, senior counsel for the American Civil Liberties Union, any Flock subscriber tied into data sharing can view the details of Valley residents.
“They can record your comings and goings in that city in extensive detail,” he said. “What Flock enables you to do is two things. One, it ties the networks together. So now it's not just what that person is doing in Litchfield Park, but what that person is doing anywhere in the country or even the world that is tied into the Flock system. Any Flock subscriber from anywhere in the world is able to now look at the data from Litchfield Park, on the residents of Litchfield Park, wherever they might travel in the world.”
The one that got away, the high school bully or an ex’s boyfriend, could all be potential targets.
Most cities in Maricopa County and some in Pinal County have Flock cameras. For those that don't, state or county law enforcement agencies deploy cameras to areas indiscriminately, leading to concerns over Fourth Amendment privacy interests, misuse and politically-based monitoring.
Come back with a warrant
Flock claims to purge license plate data after 30 days, but agencies using the Flock system can pull 30 days’ worth of location history on individuals and can download the data for agency retention.
Litchfield-associated police and other police in Maricopa County routinely set up alerts for people of interest in investigations within and outside of their jurisdiction. Some are criminal suspects, some aren’t. Moreover, the oversight of their data retention or their police targeting is opaque.
According to Litchfield Park’s alert blotter, Police set up alerts to talk to people who speak to city workers. The town is also alerted when certain felons enter the city limits.
“Sex offenders vehicles ‘crossing’ a flock camera automatically alert the system. Leaving or entering,” said Litchfield Park City Manager Matthew Williams.
According to Holly Beilin, a representative with Flock, this action seemingly violates the intent of Flock’s limitation.
“If an individual is on a current sex offender list, law enforcement can receive an alert if/when their vehicle enters the vicinity of a school, which is an illegal action,” she said.
Much can be said about how a government treats the "lowest" of its free individuals, according to National Association for Rational Sexual Offense Laws, or NARSOL.
"Registered sexual offenders in our society are considered the 'lowest of the low,' but all citizens, even those who have committed a past felony but who are not wanted for any new offense, are entitled to the same protections," said Sandy Rozek, a representative from NARSOL. "Just by virtue of being on the registry, registrants do not lose the rights afforded to other citizens. This is an instance of towns and counties competing to impose harsher and harsher surveillance measures on registrants, all in the name of public safety, but which are unnecessary intrusions on people’s lives, are based on irrational fear, have no effect on public safety, and are nothing but political theatre. We should all be troubled by the government surveilling law-abiding citizens as they are just trying to go about their lives."
Arizona has no school vicinity laws, absent of a court order. However, there are stipulations for felons residing near schools. Nevertheless, Beilin’s statement pays legal deference to the Fourth Amendment rights of all citizens.
The search-and-seizure provisions of the Fourth Amendment protect against “unreasonable” searches. This protection still applies to those with a criminal record or those exercising speech.
According to Robert Frommer, senior attorney for the Institute of Justice and director of the institute’s project on the Fourth Amendment, Litchfield’s flock alerts seem concerning.
“My top-level takeaway is that police are using these systems for general crime control and to track the movements of those they deem undesirable,” he said.
In 2021, the Fourth Circuit Court found in Leaders of a Beautiful Struggle v. Baltimore Police Department that extended drone surveillance constituted a Fourth Amendment search because it created an intimate mosaic of private tendencies. Similarly, in a 2018 U.S. Supreme Court case, the high court found that accessing seven days of cellphone information constituted a Fourth Amendment search, Frommer said.
“That's a search that requires a warrant,” Frommer said, about the two high court cases. “I don't see how this technology as really any different, instead of one drone in the sky, you have 100 cameras around the city, but the net effect is the same. To create a digital panopticon where the government can see the comings and goings of every citizen.”
'What have we done?'
The 3.3-square mile town of Litchfield Park chooses not to budget for a police department. The Maricopa County Sheriff’s Office policed greater Litchfield Park until July 2021, when they swapped out with Avondale Police.
The month before the swap, a study found the Maricopa County Sheriff’s Office racially profiled Latino drivers, leading to higher arrest incidents and longer detentions than white drivers. The report detailed a previous sheriff, Joe Arpaio, targeted immigrants through divisive traffic policing policies.
Under new leadership, MCSO is test-driving a pilot program to employ Flock. The office still polices and responds to less-affluent unincorporated portions of the Litchfield Park ZIP code.
According to the Fourth Amendment, the government is forbidden from conducting “unreasonable searches and seizures." This means law enforcement cannot search a person or their property unwarranted or without probable cause. For Arpaio, race was not a reasonable probable cause.
Similarly, the Fourth Amendment also applies to the collection of evidence.
According to Marlow, networks like Flock pose compelling concerns about evidence spillage.
“Oakland (California) was a sanctuary city, so that meant that it was the official policy of the city was that it would not use any of the tools of government for immigration enforcement to crack down on undocumented persons,” he said. “But because they had the network and because their data was shared with Vigilant Solutions, who was the company that ran it, as well as a fusion center, ICE (U.S. Immigration and Customs Enforcement) was able to get their hands on Oakland’s ALPR data and use it to go after undocumented persons and communities even though that was a direct violation of Oakland law.”
When asked if ICE has access to Flock systems in any way, company representative Holly Beilin said, “We have no relationships with ICE.”
At the same time, when asked if the Flock system tracked illegal immigrants, Beilin said the system can be used by local authorities on local laws.
"We’d expect that local law enforcement will enforce any laws as they are legally or socially required," she said. "Flock does not determine what a crime is and we do not enact laws; we support the democratic process and believe local residents should work with their democratically-elected governing bodies and officials to enact laws."
Fusion centers like the Arizona Counter Terrorism Information Center partners the Arizona Department of Homeland Security with agencies like the U.S. Department of Homeland Security (parent of ICE), Arizona Department of Public Safety, FBI, MCSO and other participating police departments.
The state legislature created the Arizona Department of Homeland Security. That same legislature urged former Gov. Doug Ducey to use war powers to declare war on immigration in 2022.
“It has devastating consequences for a vulnerable community,” Marlow said. “And that could certainly be the case of any ALPR system, especially, like I said, if it's not a localized system, but instead a national or a globalized system.”
Marlow encourages communities to consider localized ALPR systems as a best practice. He thinks privacy harms are more localized, and the power to weld harm is better contained.
“When you're dealing with the risks of [a localized] system, they're at least more contained than they are with Flock,” he said. “If you just reflexively go with Flock because you like their advertising campaign or your neighboring cities doing it then you're opening up a much bigger can of worms that you probably could have, would have wanted to avoid if you really thought about it. Activists in the community need to be bringing it up to their council members, now, so they're making smart decisions at the outset rather than waiting for some catastrophic harm to occur. They're going oh my god, what have we done?”
Flock has declined to provide a list of organizations they work with in Arizona.
Update: May 15, 2023
This story has been updated to address the “worldwide” and “any subscriber” claims by the ACLU.
“Flock only has customers and devices in the U.S., so ‘worldwide’ is quite misleading,” said Beilin, in an e-mail response to the story. “Private customers, like neighborhoods (HOAs), are never able to access data from any cameras besides their own."
Michael McDaniel can be reached at mmcdaniel@iniusa.org. We’d like to invite our readers to submit their civil comments, pro or con, on this issue. Email AZOpinions@iniusa.org.
