Judge Rules Flock Surveillance Images Are Public Records That Can Be Requested By Anyone

Hey there,

A really interesting decision out of Washington, where a judge has decided that Flock surveillance images are subject to the state's public records law. This is a win for transparency, but raises all sorts of questions about how much data is being collected, who should have access to it, and when the police decide to take "privacy" seriously.

And in a week's time—Wednesday, 19th November, at 1PM ET—we will host our latest FOIA Forum! In this live-streamed event we'll show you how researchers and others found local cops were doing lookups for ICE in a nationwide surveillance network. Get access here.

-Jason

A judge in Washington has ruled that police images taken by Flock’s AI license plate-scanning cameras are public records that can be requested as part of normal public records requests. The decision highlights the sheer volume of the technology-fueled surveillance state in the United States, and shows that at least in some cases, police cannot withhold the data collected by its surveillance systems.

In a ruling last week, Judge Elizabeth Neidzwski ruled that “the Flock images generated by the Flock cameras located in Stanwood and Sedro-Wooley [Washington] are public records under the Washington State Public Records Act,” that they are “not exempt from disclosure,” and that “an agency does not have to possess a record for that record to be subject to the Public Records Act.” 

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She further found that “Flock camera images are created and used to further a governmental purpose” and that the images on them are public records because they were paid for by taxpayers. Despite this, the records that were requested as part of the case will not be released because the city automatically deleted them after 30 days. Local media in Washington first reported on the case; 404 Media bought Washington State court records to report the specifics of the case in more detail.

A screenshot from the judge's decision

Flock’s automated license plate reader (ALPR) cameras are used in thousands of communities around the United States. They passively take between six and 12 timestamped images of each car that passes by, allowing the company to make a detailed database of where certain cars (and by extension, people) are driving in those communities. 404 Media has reported extensively on Flock, and has highlighted that its cameras have been accessed by the Department of Homeland Security and by local police working with DHS on immigration cases. Last month, cops in Colorado used data from Flock cameras to incorrectly accuse an innocent woman of theft based on her car’s movements.

The case came in response to a public records request made by Jose Rodriguez, who in April sought all of the images taken by the city’s Flock cameras between the hours of 5 and 6 p.m. on March 30 (he later narrowed this request to only ask for images taken by a single camera in a half-hour period). The city argued that Rodriguez would have to request them directly from Flock, a private company not subject to public records laws. But Flock’s contracts with cities say that the city owns the images taken on their cameras. The city eventually took Rodriguez to court. In the court proceedings, the city made a series of arguments claiming that Flock images couldn’t be released; the judge’s decision rebuked all of these many arguments.

“I wanted the records to see if they would release them to me, in hopes that if they were public records it would raise awareness to all the communities that have the Flock cameras that they may be public record and could be used by stalkers, or burglars scoping out a house, or other ways someone with bad intentions may use them. My goal was to try getting these cameras taken down by the cities that put them up,” Rodriguez told 404 Media. “In order to show that the records were public records and that they don’t qualify as exempt under the Washington public records act we cited the contract, and I made requests to both cities requesting their exterior normal surveillance camera footage from their City Hall and police station that recorded the streets and parking lots with vehicles driving by and license plates viewable, which is what the Flock images also capture. Both cities provided me with the surveillance videos I requested without issue but denied the Flock images, so my attorney used that to show how they contradict themselves.”

"it is pretty abhorrent that the city tried to make all of these arguments in the first place"

The case highlights the lengths that police departments and cities are willing to go to in order to prevent the release of what they incorrectly perceive to be private information owned by their surveillance vendors (in this case, Flock). Stanwood’s attorneys first argued that the records were Flock’s, not the city’s, which is clearly contradicted in the contract, which states “customer [Stanwood] shall retain whatever legally cognizable right, title, and interest in Customer Generated Data … Flock does not own and shall not sell Customer Generated Data.” The attorneys then argued that images taken by Flock cameras do not become requestable data until it is directly accessed and downloaded by the police on Flock’s customer portal: “the data existing in the cloud system … does not exist anywhere in the City’s files as a record.” The city’s lawyers also argued that Flock footage is police “intelligence information” that should be exempt from public records requests, and that “there are privacy concerns with making ALPR data accessible to the public.” 

“Honestly, it is pretty abhorrent that the city tried to make all of these arguments in the first place, but it’s great that the court reaffirmed that these are public records,” Beryl Lipton, senior investigative researcher at the Electronic Frontier Foundation, told 404 Media in a phone interview. “So much of the surveillance law enforcement does is facilitated by third party vendors and that information is stored on their external servers. So for the court to start restricting access to the public because law enforcement has started using these types of systems would have been horribly detrimental to the public’s right to know.”

In affidavits filed with the court, police argued that “if the public could access the Flock Safety System by making Public Records Act requests, it would allow nefarious actors the ability to track private persons and undermine the effectiveness of the system.” The judge rejected every single one of these arguments.

Both Lipton and Timothy Hall, Rodriguez’s attorney, said that, to the contrary, Rodriguez’s request actually shows how pervasive mass surveillance systems are in society, and that sharing this information will help communities make better informed decisions about whether they want to use technology like Flock at all. 

“We do think there should be redactions for certain privacy reasons, but we absolutely think that as a whole, these should be considered public records,” Lipton said. “This is part of the whole problem: These police departments and these companies are operating under the impression that everything that happens on the street is fair game, and that their systems are not a privacy violation. But then when it comes to the public wanting to know, they say ‘this is a privacy violation,’ and I think that’s them trying to have it both ways.”

Hall said that Rodriguez’s case, reporting by 404 Media, and a recent study by the University of Washington about Flock data being available to immigration enforcement officers, has started a conversation in the state about Flock in general. 

“Now because of the Washington State Public Records Act, people can be aware of all the information these cameras are collecting. Now there’s a discussion going on: Do we even want these cameras? Well, they’re collecting way more information than we realized,” Hall told 404 Media in a phone call. “A lot of people are now realizing there’s a ton of information being collected here. This has now opened up a massive discussion which was ultimately the goal.”

A Flock spokesperson told 404 Media that the company believes that the court simply reaffirmed what the law already was. The city of Stanwood did not respond to a request for comment.

Rodriguez said that even after fighting this case, he is not going to get the images that he originally took, because the city automatically deleted it after 30 days, even though he filed his request. He can now file a new one for more recent images, however.

“I won’t be getting the records, even though I win the case (they could also appeal it and continue the case) no matter what I won’t get those records I requested because they no longer exist,” Rodriguez said. “The cities both allowed the records to be automatically deleted after I submitted my records requests and while they decided to have their legal council review my request. So they no longer have the records and can not provide them to me even though they were declared to be public records.”