If you drive around Norfolk, you’re being watched. Not just by people around town, but by the government. The Norfolk Police Department, using a network of more than 170 spy cameras installed across the city, records your driving patterns and stores that data on a rolling 30-day basis. This system, a state trial court recently explained, lays “a dragnet over the entire city.”
Dragnets raise grave legal concerns. The Fourth Amendment protects “the right of the people to be secure in their persons” from “unreasonable searches.” It was inspired, in large part, by founding-era search practices that gave officials unfettered discretion to invade people’s property to root around for smuggled goods and papers critical of the government. These were fishing expeditions, plain and simple.
We live in a different world now. Physically invading property is no longer the only way to threaten our security. Technological advances have given officials new ways of intruding and surveilling that the founders couldn’t have imagined. But the basic problem that inspired the Fourth Amendment — granting officials unchecked power — remains the same. Yesterday’s unfettered searches of homes and drawers are today’s warrantless drone spying and GPS tracking.
Fourth Amendment law, while imperfect, has tried to keep up with these new technologies. In 2018, the Supreme Court held that officials needed to get a warrant based on probable cause before they could subpoena seven days of historical location data from a defendant’s cell phone carrier. In 2021, following that decision, the Fourth Circuit held that constant warrantless aerial surveillance over the entire city of Baltimore was unconstitutional.
Relying on these cases, the same state trial court that called Norfolk’s camera system a “dragnet” held that using the cameras to identify a criminal suspect without a warrant violated the Fourth Amendment. For one, “[p]rolonged tracking of public movements with surveillance serves to invade the reasonable expectation [of privacy] citizens possess in their entire movements.” For another, the court worried about “the many ways in which [the system] could be abused” given that officials need no training to access the system and the data it collects can be shared outside Norfolk.
Despite these serious constitutional problems, the decision — which applied only to the defendant in that case — leaves the camera system in place. If you live in Norfolk, that should concern you. Maybe you’re a parent driving your kid to school or daycare every day. Maybe you’re a patient driving to regular medical appointments. Maybe you’re religious and you drive around trying to spread the good word. Or maybe you simply drive for a living.
All of these things — your daily habits, your driving patterns, your private affairs — are being swept up in Norfolk’s “dragnet.” And none of it is OK. Fighting crime is great. Nobody opposes that. But the Fourth Amendment wasn’t adopted to make life easier for law enforcement. It was adopted to make us secure from abusive searches — no less when those searches follow us across an entire city. And the main way the Fourth Amendment does that, the Supreme Court has held, is with a simple rule: If the government wants to spy on you, it should have to get a warrant.
Surely that’s not too much to ask. Again, we all have a constitutional right to be “secure” from unchecked government surveillance. And that means we shouldn’t have to worry, when we step outside and go about our daily lives, that officials are tracking our every movement. Until Norfolk’s camera system comes down, unfortunately, fear is exactly what residents will feel.
Joshua Windham of Arlington is an attorney and Elfie Gallun Fellow in Freedom and the Constitution at the Institute for Justice, where he represents people free of charge in cases challenging unconstitutional searches and seizures. Email him at jwindham@ij.org.
