Fourth Amendment Whack-a-Mole
The courts are playing a never-ending game of Whack-a-Mole by batting away new privacy violations every time a new piece of technology arises. Although technology is ever-evolving, the privatization of surveillance is giving Courts a never-ending list of tech permutations that test whether the Fourth Amendment has been violated. This means that private companies are constantly monitoring public sentiment, responding either by doubling down on surveillance, appealing unfavorable court cases, or changing privacy policies to reflect court conclusions.
Technological Evolution of Surveillance
The Fourth Amendment has come under judicial review in a variety of cases involving technological surveillance. The first technology that swept the nation and departed from the Founders’ understanding of practical life was the automobile. During Prohibition, vehicle searches became the legitimate inquiry of police searches stopping illegal trafficking of alcohol. The Supreme Court found that "contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant" where probable cause exists, because of the exigency to retain evidence from the automobile. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). The Court understood that this was the first technological departure from the Founding Era where warrantless searches were found to be permissible, giving law students the automobile exception. Because of the fleeting nature of the location of a vehicle, 20th-century cases largely focused on vehicles’ ability to move as the impetus behind warrantless searches. Some new technological surveillance was questioned in these late 20th-century cases, such as beeper trackers in the trunk of a car (United States v. Knotts), and aerial surveillance through a helicopter (Florida v. Riley (1989), but the logic held throughout these cases that a person forgoes a reasonable expectation of privacy once they are able to be viewed from public places.
Modern Surveillance Methods
After the 2000s, where everyone needed to stay connected outside of the office, mobile phone ownership skyrocketed. As early as 2005, two-thirds of Americans owned their own cell phone. Twenty years later, 98% of Americans owned a cellphone, and 91% owned a smartphone. As many industries quickly integrated with internet-capable technologies, so did police surveillance. This became the central issue in landmark cases like Riley v. California (finding that cellphone data is not an immediate threat to officers’ life, and a warrant is needed to search through data that would not be quickly deleted), Carpenter v. United States (finding that police will need a warrant to access cell-site location information, CSLI), and the latest geofencing case, Chatrie v. United States (finding that a person does have a reasonable expectation of privacy in his cell phone location).
The Court in Chatrie remanded to let the lower courts determine whether the search was reasonable, leaving companies like Google and Flock in limbo as to whether their participation in police investigations is permitted under the third-party doctrine. Justice Gorsuch’s concurrence in Chatrie suggests a “quiet burial” of the third-party doctrine, meaning that Google or Flock would still need to verify information that they give to law enforcement is backed by a warrant or reasonableness. However, what the average citizen should know is that it’s not simply owning a cell-phone that implicates your Fourth Amendment rights. An entire grouping of emerging companies has gained a lot of investment over their ability to surveil citizens with new technology.
Emerging Companies Profiting from Surveillance
In recent months, Flock Safety has come under heavy scrutiny for several accounts of inappropriate use of their technology. It didn’t help that their CEO doubled down on criticism with further unsavory comments to public outcry over their pervasive technology.However, what the public largely missed is Flock’s past unrecognized success leading up to the latest flurry of misuse. With Flock Cameras present in 49 states, 120,000 cameras installed nationwide, and as of April 2026, having raised $208 million in a Series I round, clearly some parties are very happy with Flock’s business model. Apart from their VC investors, Flock is still receiving state funding in places like South Carolina, which doubled-down on their investments amid a wave of other states like Massachusetts, Texas, Pennsylvania, and Florida pulling out of contracts or licenses with Flock. The strength of the company, financially, looks promising still. However, these investors will have to weather future privacy cases, and help guide these companies toward compliance in order to stay profitable.
To avoid more direct backlash, companies like Google have already changed the way data is stored. For example, Google now stores personal location data on the user’s phone itself, rather than previously storing it in the cloud. Other companies like Flock have ensured that the retention period of keeping personal data is cut from 30 to 7 days.Given that there is a large list of lesser-known companies that continue to receive grants and funding, but are not as visible as Flock or Motorola for many reasons, it is important to note what Americans want to do with the status quo.
Activism and Congressional Legislation
Largely because of the public backlash, Congress has only just taken steps to “De-Flock” America. The bipartisan No FLOCK Act was introduced by Representatives Raja Krishnamoorthi (D-IL) and Michael Cloud (R-TX) on September 15, 2026. This legislation would require states to limit automated license plate readers to specific public safety and toll-enforcement purposes, such as identifying stolen vehicles or vehicles involved in felony offenses and locating missing or endangered people. States would have two fiscal years to enact these restrictions. Those that fail to comply within the implementation period would have 10% of their annual federal surface transportation funding withheld. If enacted this year, the law would begin withholding tens to hundreds of millions of dollars in annual transportation funding directed for highways, roads, and bridges, from noncompliant states beginning in October 2028.
Congress has previously used its spending power to pressure and influence state decision-making on issues of public safety. For example, the government used this power to set a national minimum drinking age by passing the National Minimum Drinking Age Act of 1984, which threatened to withhold federal highway funds from states that maintained a drinking age below 21. However, the key distinction is that the National Minimum Drinking Age Act applies to the states via the state action doctrine. It’s up to Congress and state legislatures to determine the responsibilities of private companies.
Just a few weeks before the No Flock Act was passed, Representative Thomas Massie (R-KY) introduced the Flock-Off Act, a bill that prohibits federal funds from being used to purchase, install, maintain, operate or upgrade automated license plate readers and biometric surveillance cameras. Federal agencies along with grant recipients must decommission such surveillance systems or terminate agreements with related companies within 180 days of enactment or repay the US Treasury. These two pieces of legislation emerged largely in response to mass public backlash against the technology and reported cases of misuse by federal employees.
Will Courts Get to Finish Playing Whack-a-Mole?
Ultimately, Justice Gorsuch went furthest, ruling that personal location data is analogous to the Fourth Amendment phrase, “papers, and effects”. But that does nothing to resolve the ongoing disputes about how data is collected and stored, nor whether the next frontier of surveillance tech will repeat these disputes. The Courts will have to continue playing “Whack-a-Mole” with automatic license-plate readers, stored by Flock, a private company that has no restrictions on searches through “papers, and effects”. Congress must do its part, and clarify the remaining responsibilities that private companies owe the public as to their information and data, as the Fourth Amendment does not reach emerging companies and their venture capital.
*The views expressed in this article do not represent the views of Santa Clara University.
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