A Fourth Amendment for the 21st Century

Any privacy in public Americans thought they had before the age of modern computers and an ever-growing list of low-cost connected devices came from resource constraints, Reilly Stephens says. Melanie Sun/The Epoch Times

Commentary

“Twentieth-century Fourth Amendment law was really written for a world before computers,” Reilly Stephens, an attorney with the Liberty Justice Center, said in an early September interview. “It was literally written before any kind of modern computers—certainly before cell phones and all those things—and there were these assumptions built into the law that were really based around resource constraints.”

Stephens referenced a 2012 Supreme Court case regarding the placement of a GPS tracking device on a car by law enforcement.

“[Samuel] Alito talks about this in his concurrence in Jones ...” he said. “[Alito] says it used to be we said the cops can watch anything you do in public because if you’re in public you don’t have any expectation of privacy.”

Any privacy in public that Americans thought they had before the age of modern computers and an ever-growing list of low-cost connected devices came from resource constraints, Stephens explained.

The attitude among law enforcement, he said, was: “Yeah we can put a tail on you, [but] that’s a body. That’s a cop who’s going to be [following] you 24/7. ... You only are going to do that if you actually have someone that you have a reason to go after.”

Thus the problem with modern surveillance tools, said Stephens, “really comes down to how low the marginal cost of surveillance becomes.”

Today, modern law enforcement has all sorts of relatively low-cost surveillance tools at their disposal: facial recognition, drones, cell site simulators, gunshot detection devices, and more. Many of these devices now routinely are used by law enforcement with little regulation or oversight. To reiterate a point I made in an article for Brownstone Journal earlier this year, whether a surveillance state truly is the end goal is difficult to say, although that is definitely the road down which we are traveling.

Stephens, however, along with fellow Liberty Justice Center attorney Jeffrey M. Schwab, are hoping to do their part to change this, starting in the state of Illinois.

Scholl v. Illinois State Police

At the beginning of the summer, Stephens and Schwab filed a complaint, Scholl v. Illinois State Police, that takes on the use of automatic license plate readers (ALPRs) by the Illinois State Police—just one of many law enforcement entities in Illinois to embrace these devices over the past several years.

ALPRs are ”high-speed, computer-controlled camera systems” that “automatically capture all license plate numbers that come into view, along with the location, date, and time” before uploading this information to a searchable database.

The specific program targeted by Stephens and Schwab’s lawsuit was initially instituted through the 2019 Tamara Clayton Expressway Camera Act following the fatal shooting of postal worker Tamara Clayton on a major Illinois highway. The system is said to have been set up as a means to aid criminal investigations and reduce violent crime.

By the end of 2022, there were 300 ALPRs installed on major Illinois expressways in and around Chicago because of this piece of legislation. That year, the program was also expanded to include an additional 21 counties, as well as Chicago’s Lake Shore Drive. As a privacy safeguard, the Illinois State Police’s “Automated License Plate Reader Transparency Page” states that data collected through this program are only stored for 90 days.

However, to Stephens and Schwab, the program constitutes “an unreasonable search” that violates the Fourth Amendment.

According to their complaint, the collection and storage of this data allow the Illinois State Police to track “anyone who drives to work in Cook County [the county in which much of Chicago and many of its surrounding suburbs are located]—or to school, or a grocery store, or a doctor’s office, or a pharmacy, or a political rally, or a romantic encounter, or family gathering—every day, without any reason to suspect anyone of anything ... just in case they decide in the future that some citizen might be an appropriate target of law enforcement.”

In a September interview via Zoom, both Stephanie Scholl and Frank Bednarz, Illinois residents and plaintiffs in the case, noted that although they are not inherently opposed to the use of ALPRs, they are troubled by many aspects of the program against which they and their attorneys are fighting.

Bednarz suggested that although Chicago is potentially one of the most surveilled cities in the world, many ordinary citizens traveling in and around the Chicago area are “not aware that the state police also have these cameras that are just sort of passively monitoring all of the traffic.”

He also expressed concern that law enforcement in Illinois appears to “like having discretion over who they get to pursue for criminal matters” and that ALPRs neatly collate large amounts of data for law enforcement to later “troll around” for and “fish out” activity they don’t like.

Scholl said that she would like to see “limits on the use [of data from ALPRs], on how far the data can be sent, how long it can be stored, and who it can be accessed by.”

Both Scholl and Bednarz indicated that if the program continues, they would like to see some kind of warrant process put in place.

This is what Stephens said he and Schwab asked for in their preliminary injunction, which he noted “is just a protection while the case goes on.”

In practice, Stephens said, this would mean that the Illinois State Police can continue to use the system for the moment but would “have to actually get a warrant to actually go in and search for anybody’s movements.”

“In the long run ...” Stephens said, “there may be some ways to have Fourth Amendment processes here where you have a warrant process and maybe that works.

“There’s an inherent problem though with these systems because the Fourth Amendment is supposed to require particularity.”

To illustrate the concept, Stephens used the example of a search of a person’s home. If the police “are searching your house for [a] murder weapon or ... searching your house for drugs, they’re not supposed to just go through your underwear drawer looking for whatever they can find.”

What the Illinois State Police are doing with ALPRs, Stephens said, is not particular to his mind. However, he said, “If our worst case scenario is we can get some constitutional process and some warrant requirements applied to these programs, I think that would be a good start.”

Depending on how far the case goes and its ultimate outcome, however, what Stephens, Schwab, and their clients are doing in Illinois has the potential to affect the use of ALPRs and other surveillance devices more broadly.

The Fourth Amendment Should Apply to Modern Surveillance Technologies

In Scholl v. Illinois State Police, Stephens said, “We’re asking for recognition of what we think [is] an extension of existing Supreme Court cases.”

Jones, Stephens said, was “about putting a GPS tracker under someone’s bumper.” What lost the case for the government, according to Stephens, was Chief Justice John Roberts’ realization that the government was claiming the right to place such a device under anyone’s bumper without a warrant, including his own. However, Stephens said, it is important to note that “the main opinion in Jones is actually based on the trespass of attaching the digital thing to the car.”

After Jones, he said, there were some other cases regarding technology. One such case, he noted, was Riley v. California, which concerned the warrantless search of data stored on cell phones.

The biggest case in this line, however, was 2018’s Carpenter v. United States, which concerned law enforcement’s use of historical cell phone location data.

“Carpenter was the first time that [the Supreme Court] recognized a broader problem with the aggregation of metadata to track people,” Stephens said.

“That’s essentially what Carpenter says ... [the government] cannot just take these big aggregations of data that we used to say were no big deal ... [because when] we pile them all together you create this really comprehensive map of people’s movements.”

Returning to his own case, he said, what he and Schwab are doing is saying that the Illinois State Police’s ALPR program is similar to what was ruled against in Carpenter as it entails the warrantless tracking of people through the aggregation of data on their movements over time in a manner that enables law enforcement to reconstruct a detailed picture of their lives and “later decide who ... they don’t like.”

This, Stephens said, is “exactly the kind of thing that Carpenter should not allow.”

If Scholl v. Illinois is successful, he said, it has the potential to continue what Carpenter began by “[setting] standards that ... would apply generally to surveillance programs and would begin to put limits on them.”

“There are obviously lots of these technologies: aerial things and facial recognition and all this new machine learning stuff,” Stephens said.

“The principles of the Fourth Amendment should apply to all the technologies. ...

“You’ve already started to see some of this. There was a case, a successful case, against Baltimore’s aerial surveillance program few years ago where they were flying a plane around with a camera, just basically filming everyone at high resolution, and the court said that wasn’t okay and so now we want the court to say [what the Illinois State Police] are doing isn’t [OK].

“That is the start of how we create the Fourth Amendment we need for the 21st century.”

From the Brownstone Institute

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.