As the country becomes increasingly consumed by the debate over Flock cameras, the issue hit the Smoky Mountains as Macon County voted to let its contract with the company lapse.
Flock cameras monitor traffic on public roads, taking a picture of every vehicle as it passes by and then running that information through its database. Law enforcement agencies that use Flock cameras have “hotlists” on which they place vehicles that may have been stolen or are associated with a suspected criminal. Any vehicle on the hotlist is flagged, and an alert is sent to the agency that placed it on the list. They are often used to track vehicles suspected of trafficking narcotics in lieu of using personnel to keep eyes on a suspected drug runner.
Citizens across the country have questioned whether Flock cameras might violate Americans’ Fourth Amendment protection against unreasonable searches and seizures and requirement that agencies obtain a warrant to conduct a reasonable search. While the United States Supreme Court has yet to establish precedent dictating how the constitution may apply to Flock cameras, it may soon.
In the case of Schmidt v. City of Norfolk, a federal court determined that the use of Flock cameras by police did not amount to a Fourth Amendment search, something that would require a warrant signed by a judge who would determine whether probable cause exists. The court determined that only constant, moment-by-moment tracking constitutes such a search, whereas taking a series of photographs of points in time does not. That case is now with the Fourt Circuit Court of Appeals and has the potential to come before SCOTUS.
Just last month, SCOTUS handed down a ruling that may foreshadow how it would consider the use of Flock cameras when it determined that the use of a geofencing warrant to arrest a suspected bank robber in Virginia constituted a Fourth Amendment search. Geofencing is a technique that pulls widespread cellular device data to determine who may have been in a certain area when a crime was committed. SCOTUS, after determining that the geofencing warrant was tantamount to a search, remanded the case to a lower court to determine if that search was “reasonable.”
In 2023, North Carolina established a pilot program allowing the Department of Transportation to enter into an agreement with the State Bureau of Investigation to place automated license plate readers (ALPRs), like Flock cameras, along public roads in certain counties, including Macon. Lawmakers tucked a provision into the recently passed state budget that included a permanent, statewide surveillance program. According to state law, data obtained is considered confidential and can’t be disclosed except to authorized individuals for legitimate law enforcement purposes.
Many have expressed concern that there is still potential for widespread misuse or even hacking of the system. Recently, three Georgia deputies were fired and arrested in connection to alleged improper use of license plate readers for personal reasons.
However, law enforcement overwhelmingly supports the use of Flock cameras and now considers them an invaluable tool. David WIjewickrama, a Waynesville attorney who represents several Western North Carolina sheriffs as well as plaintiffs in use of force cases, believes ALPRs should be used across the country. Wijewickrama’s logic is that, yes, Flock cameras can be misused, but we already trust law enforcement with firearms, tasers and handcuffs. Agency policies can be tweaked to provide accountability for Flock misuse and tighten up any loopholes.
“This is the greatest advancement in public service technology in my 57 years of life,” he said.
Meanwhile, although no states have banned Flock cameras, dozens of county and municipal governments across the country have, including some in North Carolina. In other locations, people have taken things into their own hands, like in Rutherford County, where earlier this month, a Flock camera was vandalized.
Pockets of vocal anti-Flock sentiment have emerged in Western North Carolina over the last year, but just recently the issue finally rose to the surface, as a grassroots campaign pushed Macon County commissioners to vote unanimously to defund and remove cameras owned by its sheriff’s office.
Over 100 people showed up to the July 15 meeting, with dozens standing along the walls and some spilling into the hallway. There were multiple agenda items that drew attention, so commissioners had four sign-in sheets for public comments, one for each of the hottest topics — data centers, withdrawal from the Fontana Regional library System, commissioner district reapportionment and Flock cameras. Some were keen to talk about just one item, but most seemed to feel strongly about all of them.
Many of the commenters offered facts and opinions reflecting the national conversation. They were afraid of misuse, infringement on their privacy and the slippery slope that ends with everyone, even in rural Macon County, living in a surveillance state.
“It sounds like China to me,” said commenter Bill Trick.
Republican county commission candidate Dylan Castle reminded the board that part of their oath as elected officials required that they defend the United States Constitution. As far as he was concerned, Flock cameras spit in the face of the guaranteed right to privacy as he believed the nationwide response to the COVID pandemic did in the early part of this decade.
“Surely you can see the potential for abuse, not just locally but by anyone who is capable of gaining access to this data,” Castle said.
In the weeks before the meeting, Commissioner John Shearl generated a good deal of interest in the subject with a series of Facebook posts decrying the technology. With Shearl’s ability to bring the item to a vote, Sheriff Brent Holbrooks went before commissioners to argue in favor of what he believes is a life-saving tool.
Until last week’s vote, Macon County had 16 Flock cameras, 12 owned by the sheriff’s office and four owned by the school system. Holbrooks said the cameras in the county log between 1 million and 3 million license plates per month. They’ve been used daily to assist in investigations tied to suspected breaking and entering, larcenies and narcotics-related offenses. He added that they’ve also been used — successfully in some cases — to aid searches for missing persons during Amber Alerts or Silver Alerts.
Holbrooks also called up one of his lieutenants, Lee Tritt, to attest to the value of Flock cameras, saying they’re a “gamechanger.” Tritt repeated the commonly espoused fact that the first 48 hours are crucial in criminal investigations. The sooner a suspect is developed, the greater the chance a crime can be solved, he said.
“Those cameras are almost like having an extra deputy,” he added.
During drug investigations, deputies can add a target vehicle to the hotlist which flags every time it goes by a camera, so they can generally know what trips are made and when, developing a pattern of behavior around which to shape an investigation.
“We’re not physically having to be with them and sit with them and babysit them the whole way … it takes at least five of us in five cars to do that, and we have to stay with them for hours, so it also burns up your overtime,” he said.
Shearl wasn’t hearing it. The commissioner, who said he’d spent three weeks tirelessly researching the subject, pushed back hard. The conversation between him and Holbrooks at times became heated and other times diverged into tangents about constitutional rights and general duties of a North Carolina sheriff.
Like many members of the public who commented, Shearl expressed concern about Fourth Amendment violations. Holbrooks argued that capturing information in a photograph taken of a vehicle does not constitute a Fourth Amendment violation since there’s no expectation of privacy on public roads, noting that anyone who visits a big box store can expect to be on camera the whole time, often with software on the other side performing facial recognition analysis.
Alex Guth, a representative from Flock, spoke to try to assuage Shearl’s concerns. Echoing Holbrooks, he explained that while SCOTUS ruled that geofencing is illegal because it continuously tracks a person, Flock cameras don’t do that. They take pictures of vehicles in a specific time and place. Another concern he addressed was retention of data. He said all data is purged 30 days after it’s recorded, and all data is in the custody of the law enforcement organization with the Flock contract.
Guth cited situations where Flock likely saved lives and where the cameras could have prevented a tragedy, including the Covenant shooting in Nashville, Tennessee, on March 27, 2023, that ended with six victims losing their lives, including three 9 year-old children. In that case, he said, the shooter — who likely would have been flagged — sat in the parking lot for several minutes before entering the school.
“We have real world examples for everything …. In Austin, Texas, there was a crime spree that took place for 48 hours with a group of juveniles who were randomly shooting houses, apartments and people. Over 200 officers worked multiple air units, multiple K-9 units. Do you know what caught those individuals? A city of 20,000 people with one Flock camera as they drove by.”
Shearl asked Guth about the instances where officers had abused the technology and been fired.
“They rightfully should [be fired],” Guth said.
Shearl questioned how officers are caught abusing the system. Guth said he had a “hunch” that there was an investigation completed that determined they’d used Flock cameras illegally.
“I don’t want a hunch,” Shear said. “I want the truth, and the and the truth is this: if Flock has safety nets in place, then it wouldn’t have gone on for three months, would it? I mean, some of these officers have been doing this for three months. Don’t tell me you’ve got safety nets that protects the citizens of this country, because most of the things that I’ve researched, this company is secretive.”
The commissioner said that the number of crimes solved by Flock does not justify their use. There have been false accusations leveled on account of cases built around Flock images. The commissioner didn’t seem to care much for Guth’s answers and spent a good deal of time lecturing from his seat. Eventually, he redirected his line of questioning back toward Holbrooks, going back to their alleged infringement on people’s privacy.
“John, listen, I’m right there with you with government overreach,” Holbrooks said. “If I have any inclination that there is any [data] being sold or any violations, I’ll pull them up myself.”
“I get it, but not until it’s proven in U.S. Supreme Court. How many people have you violated until it is?” Shearl said.
Shearl read Holbrooks’ job description out loud in front of the audience, which by that point had thinned out considerably. Shearl reminded the sheriff that he’s a “constitutional officer.”
Holbrooks told Shearl that there are far more invasive technologies than Flock cameras already peeking in on just about everybody’s lives, going back to the Patriot Act that became law in the wake of the Sept. 11, 2001, terror attacks and expanded both domestic and foreign surveillance programs, including the use of wiretaps on phones. With the prevalence of mobile devices most people carry now, that surveillance has only become more ubiquitous, especially as companies like Palantir have developed software that uses AI to collect and analyze data on behalf of the federal government for a whole host of purposes. Shearl argued that people choose to use a cell phone. While driving a public road may technically be a choice, there isn’t much way around it.
By the end of the long back and forth, Holbrooks said that whatever way the board decided to vote, he was just glad the whole thing would be over then and there.
Ahead of the vote, Commissioner Barry Breeden said Flock cameras were a “50-50 for him.” He saw their value as a tool but also understood the concern citizens have about what feels like surveillance that is ever-encroaching on their privacy. All commissioners, other than Shearl, seemed to wrestle with the same pros and cons. Breeden, who served as a Swain County deputy from 2010-2015 and still has an active law enforcement certificate with Macon County, considered whether it was worth surveilling everyone just to catch a limited number of criminals. He weighed the good with the bad — or at least the unknowns.
“I understand where people are coming from, but we’re selling out every day,” Breeden said. “We’re on Facebook … You’re being tracked, regardless of if it’s Flock or something else.”
Shearl made a motion to “de-Flock Macon County,” which amounted to defunding the cameras by opting out of the contract once it’s set to renew.
Commission Chair Josh Young offered his thoughts, opening his remarks by saying he’d “dreaded” the conversation for a few weeks. He’d gone around town during his regular course of business and asked people about their thoughts on Flock cameras. Most didn’t even know what they were, but those who did and weren’t in law enforcement were almost entirely against them, he said, adding that those opinions came from across the political spectrum.
The motion passed on a 5-0 vote. Shearl asked when the cameras would “disappear from Macon County.” Because they’d only voted on renewal of the contract with Flock, there was nothing mandating their removal. Shearl made a motion that the cameras are removed as soon as it’s feasible. The motion was seconded by Breeden before being passed unanimously.
While the 12 cameras operated by the sheriff’s office will come down, those used by county schools will remain. Shearl asked that those cameras be moved to school property so they’re not taking pictures on public roads.
During the meeting, Young said that the constituent feedback he received affected his decision.
“In my heart, I just genuinely feel like the people that I represent, the people that I work with, just the average paid, you know, working man and woman that I run into, they don’t want the cameras, and I feel like I represent those people,” he said.
“I work for the people, the people put me here, and I’ve had an overwhelming majority of people reach out and say they just don’t want me. Period,” he added.
On June 20, five days after the meeting, Young and Breeden spoke with The Smoky Mountain News to answer questions regarding the logic behind their decisions. Those two commissioners seemed most on the fence prior to the vote, but to say that they would personally support the use of Flock cameras were it not for constituent feedback would be misleading. Young’s feelings are more complicated than that. He didn’t think anyone would dispute that Flock cameras are a valuable tool for narcotics investigations and quick responses to kidnapping and Silver Alerts, but he doesn’t trust how the data may be stored or used beyond the control of local law enforcement.
“I feel like I could support it a whole lot more if it were our law enforcement tied with state law enforcement versus a third party providing monitoring data and profiting off of this,” Young said. Breeden echoed that sentiment.
“I do see the good in it, but there’s a lot of unknowns in where the data goes, and we don’t really have control over it,” Breeden said.
Chris Cooper, who heads up Western Carolina University’s political science program, said that the pushback against Flock cameras is unique because it spans much of the political spectrum.
“You’ve got civil libertarians who voted proudly for Harris and civil libertarians who’ve got a MAGA hat in their closet, and they’re united on this issue,” Cooper said.
However, the issue likely wouldn’t have seen daylight — at least not as early as it did — were it not for Shearl using social media to create conversations about Flock cameras in the weeks ahead of the July 15 meeting and his ability to put the item on the agenda. Although he had his own reservations regarding the use of Flock cameras, Young did admit that constituent feedback impacted his decision. “At the end of the day, when people show up and every text message, email and phone call was from people saying we don’t want Flock cameras, how do you vote against the people in that case?” he said. Cooper noted that Shearl’s ability to create such a powerful local movement in a short time is a reminder that anyone’s voice can lead to actual policy change, especially in smaller local governments, comparing Macon’s anti-Flock push to the movement that led to sweeping changes with the Fontana Regional Library System driven by just a handful of local conservative activists.
“We spend so much time thinking about Donald Trump and national politics to remember that sometimes a small number of people can make a big difference in local politics,” he said. “And it matters.”