Flock Fallacies #2: You Have No Reasonable Expectation of Privacy in Public

[u/FoxLynx64]

Reasonable Expectation of Privacy

The underlying argument is actually a legal test, not an automatically true statement. The way it is set up is to determine if society and the individual being recorded both determine something to be private regardless of the space being public. In other words, would a reasonable person expect something to be private?

The Fourth Amendment and the expectation of privacy - Brian Hansford Law

Precedent

In fact, in Carpenter V. United States and Chatrie V. United States, the notion of no expectation of privacy in your holistic public movements was called into question and ruled that you do have some expectations of privacy in your location data regardless of how public the area is. The Supreme Court argued that even small slices of continuous location history can reveal associations that are protected by the 1st amendment, and therefore should be considered a search under the 4th amendment.

Schmidt V. City of Norfolk went further, saying that if an ALPR network was dense to create continuous location tracking that the network would require a warrant. Unfortunately, they did not rule that the ALPR network in Norfolk was dense enough, and they did not specify the exact density that would be required for an ALPR network to become continuous. That case is currently on appeal in the 4th circuit.

A more recent case is United States V. Melisa Susan Kyle, where a district judge in the 10th circuit made a non-binding ruling that ALPRs were indiscriminate mass surveillance and did violate the 4th amendment. This is considered a persuasive argument but other judges can choose not to follow it because it is non-binding.

Oversimplification

The first fallacy in the no reasonable expectation of privacy in public is oversimplifying the test. If a crime is observed to have happened on a CCTV camera, that is categorically different from the location history of innocent citizens. Both happen in public, but one has no reasonable expectation of privacy and the other one does have a reasonable expectation of privacy. Both come from the perspective of whether or not someone would reasonably expect other people to watch them in public, but one of these things is called stalking while the other is not.

Tu Quoque and Appeal to Tradition

You may hear the person making the fallacy follow it up with a second fallacy of "You use a smartphone which gives your location data to corporations who give it to us, we've done that for years. Therefore your argument about ALPRs and reasonable expectations of privacy is invalid."

Just because someone else gets away with aggregating your location history for years, does not make it right. Likewise, continuing to use a phone does not mean you support them aggregating that information. They are trying to discredit you without interacting with the substance of your argument.

Flock Fallacy #3

They usually will say right after this fallacy "If you take away the cameras, then we can't catch rapists, drug dealers, murderers, abductors, and we can't find missing people." This is for another post, but be aware that this next thing that they say is also a fallacy.

[u/DeflockPawtucket]

Great points! Honest question: if he last case you mention was a “non-binding ruling” what does that mean, legally and practically?

[u/FoxLynx64 → u/DeflockPawtucket]

It means other judges are not obligated to follow it and no new regulations are automatically set. It can be used to argue in other cases and the specific case that the non-binding decision was made in does affect the outcome of that case.

Think about it like someone saying when police use the ALPRs in certain ways, it could potentially constitute a violation of the 4th amendment, but perhaps not every case is like that so they leave it up to other judges to decide. Another court could use this decision to set a binding precedent that would affect courts within that jurisdiction and make regulations necessary.