Two Boulder residents filed a class action lawsuit challenging the Boulder Police Department’s use of Flock automatic license plate reader cameras on May 27, alleging they amount to “mass, suspicionless, warrantless surveillance.”
One of the plaintiffs named in the suit is Will Freeman, a Boulder resident and founder of DeFlock, a website dedicated to advocating against the use of AI-powered cameras. Automatic license plate reader cameras record each time a car passes, capturing identifying information like bike racks, car color and bumper stickers in addition to license plate numbers. That data is stored for 30 days and can be searched by hundreds of police departments in Colorado without a warrant. Boulder police operate over 30 such cameras in the city.
Plaintiffs, represented by the Denver law firm Newman McNulty, claim that this practice violates the Colorado Constitution’s prohibition on warrantless searches.
“No warrant has ever authorized this surveillance,” a news release from the firm reads. “No judge has ever found probable cause to believe that any Coloradoan who is being surveilled is involved in any criminal activity.”
The second plaintiff, Gwen Steel, claims she is surveilled during her commutes to work four days a week, as well as while running errands, traveling to the Islamic Center to worship and traveling to and from protests.
The suit names Boulder Police Chief Steve Redfearn and city records and information services supervisor Dawn Vanackeren as defendants.
In addition to the warrantless search claim, Freeman is suing under the Colorado Criminal Justice Records Act for records related to the images and data Flock cameras have recorded on his vehicle. Freeman previously submitted a records request for this information and was told police could not perform a search for his vehicle because the search would not fall under allowable “law enforcement purposes.”
In the past, Boulder police have defended their use of Flock, saying the city only uses the cameras for legitimate investigations and that the technology has been key to reducing auto theft in the city.
But last month, in response to pushback over Flock, Boulder opened a bidding process for other companies to provide automatic license plate readers to the police. The city manager’s office will select a shortlist of vendors for a pilot project around June 19.
Andy McNulty, one of the attorneys representing the plaintiffs, said switching vendors would not address opponents’ core privacy concerns. Data on each vehicle would still be tracked, stored and searchable. As more cities have moved away from contracting with Flock in recent months, DeFlock has also expanded its focus from Flock to all automatic license plate reader systems.
“The underlying technology is the same,” McNulty said. “Switching out one contractor for another to do the exact same thing, which is continuously surveil its citizens without a warrant, would still violate the Colorado Constitution.”
A City of Boulder spokesperson could not be reached for comment Thursday.
In a similar case in January, a U.S. district judge in Virginia ruled that the City of Norfolk’s use of Flock cameras did not violate residents’ Fourth Amendment rights.
Judge Mark Davis found that several hundred images of the two plaintiffs’ vehicles over the course of four months did not violate their “reasonable expectation of privacy in the whole of their physical movements,” a standard from a 2018 Supreme Court case, Carpenter v. United States. In Carpenter, the court ruled that a warrantless search of a plaintiff’s cellphone records, which captured his general location 12,898 times over a similar period, violated the Fourth Amendment.
Judge Davis ruled that the number of photographs collected in Norfolk was too limited to track the entirety of someone’s movements, but cautioned that “the constitutional balancing could conceivably tip the other way” as the number of automatic license plate reader cameras expands.
“It is encouraging to see such rulings that align with our use of this technology,” Redfearn wrote of the ruling in a February newsletter.
The Boulder plaintiffs are hoping the Boulder County District Court will see things differently.
“This is the kind of dragnet surveillance that turns every neighborhood into a checkpoint and every commute into a serious violation of privacy rights,” attorney Andy McNulty said in a statement. “The Colorado Constitution does not permit it, and we intend to put a stop to it.”
The suit also argues that the technology reaches beyond cars.
“According to Flock’s patent filings, the ALPR system can classify individuals by race, gender, height, weight, and even clothing. Flock’s ALPR system can track not only people in vehicles, but also people on bicycles,” the suit reads, claiming that in an internal company video presentation, Flock’s chief strategy officer said the AI technology could be used to find a “‘person in a red hoodie with a black backpack.’”
A 2022 City of Boulder contract with Flock also states that Flock automatic license plate readers offer motion detection that allows for “unique cases such as bicycle capture, ATV, motorcycle, etc.”
Flock has drawn criticism over the past year over privacy concerns, the potential for Immigration and Customs Enforcement to access its data and a lack of guardrails around the technology’s use. The class action lawsuit cites several cases in which police officers used the technology to stalk an ex.
Boulder state Sen. Judy Amabile introduced a bill this year that would have limited how long police agencies could store data collected through technologies like automatic license plate readers and added oversight requirements for searches. But she pulled the bill last month, saying it didn’t have the votes and faced strong opposition from law enforcement.
