Bastiat’s Warnings for the Age of Flock
The 4th Amendment was written by James Madison in the 1700s. Frederic Bastiat wrote “The Law” and “That Which Is Seen and That Which is Not Seen” in the 1800s. Reason Magazine wrote a story about Mason Grimmet suing the city of Wichita for constitutional violations just last month. As much as we’d like to think that we’ve honored the principles our country was founded on and have heeded warnings that threaten our individual liberties, it’s clear that the words of Madison and Bastiat are just as crucial now as ever.
During the American Revolution as the British grew more and more suspicious of defectors, military officers started issuing general warrants that allowed soldiers to raid any suspected houses or ships. In response to these warrants, James Madison introduced the 4th Amendment which reads “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” While the Founding Fathers weren’t experiencing high tech surveillance by the British, they were intuitive enough to build protections from unreasonable searches into their new government. What would James Madison think about technology that according to the Wichita lawsuit “is subversive of the liberty of every individual”?
License plates by themselves are obviously not a dangerous technology, but put together with Automated License Plate Readers (ALPRs) they enable the building of “pattern of life” data. In the city of Wichita there are about 200 Flock cameras that are virtually impossible to avoid. According to litigator Sam MacRoberts this network has “databased” citizens without a warrant. Every Wichita police officer has access to both real time and historical tracking data on every citizen - data which is also shared with hundreds of other agencies.
ALPR or Flock cameras are not just tracking your license plate numbers, they are tracking a handful of other characteristics including any stickers or decals on your car creating what they are calling a “vehicular fingerprint.” Across the country use of Flock cameras is already widespread with 90% of larger sheriff’s offices using them and about 90,000 total cameras installed. The estimated accuracy of these cameras is 80-85% which means that in Wichita alone over 100,000 vehicles have been misidentified. There are also already several documented instances of police officers abusing the database by tracking or stalking romantic partners.
Section 15 of the Kansas Bill of Rights is modeled after the 4th Amendment and also protects citizens from unreasonable searches. Under the Supreme Court’s 1967 ruling Katz v. United States, ALPR surveillance does qualify as a search. More recent cases Carpenter v. United States and Chatrie v. United States concludes that citizens do have a reasonable expectation of privacy regarding their movements. Furthermore it is already illegal to stalk, which includes tracking someone’s location without their knowledge.
ALPRs are simply the gateway drug that leads local law enforcement down the path of full time audio and visual surveillance of innocent citizens. While this technology isn’t exactly brand new, it’s certainly alarming how many instances of abuse we have already seen locally and nationally. Only recently have cities started crafting guardrails around the data that’s being collected. Because Flock’s official legal description of their product is a “dynamic surveillance network” one has to wonder if guardrails will really prevent innocent citizens from being violated?
Frederic Bastiat was a French economic journalist and political writer from the 1800s. He is still known today as one of the best expositors of classical liberalism. Bastiat offered a consistent view of libertarian principles and wrote in ways that the “everyman” could understand. His writings were left for us as breadcrumbs so that every generation may navigate through complex modern day problems and find our way back to freedom.
According to Bastiat, we each have a right to defend our person, liberty, and property. He defines legitimate government as “the collective organization of the individual right to a lawful defense.” He goes on to explain that if individual citizens cannot use force against each other, then the government should not use force against its own citizens either. Bastiat believed that if a nation were to be founded on this simple idea then order would prevail and there would be no arguments at all with the government.
Bastiat defines plunder as “seizing and consuming the products of the labor of others.” He goes on to explain the definition of legal plunder as “when plunder is organized by law for the profit of those who make the law.” When the law can be used to plunder and profit, then it should be no surprise when everyone wants to utilize it for their own benefit. This system of legalized plunder will only serve to blur the lines between justice and injustice until all forms of human respect are erased from memory.
In “That Which Is Seen and That Which Is Not Seen” Bastiat states that a good economist looks at both the effects of policy that are seen and that which are necessary to foresee. In his famous “Broken Window” essay he expertly explains why destruction is not profit. Behind every apparent benefit to the public there is often a very negative result that is harder to see. The only way to have a society of true association is to have a society free of unnecessary regulations.
Bastiat’s idea that the role of legitimate government is to protect our right to defend our life, liberty, and property should echo the familiar ring of our Declaration of Independence. Most citizens never expect that the government that would be the culprit to aggress against those rights. Because of how often that is actually the case, it is imperative that we apply Bastiat’s filters to modern day political discord. For every seemingly good policy that is proposed or enacted we must look for the hidden negative impacts.
One of the most appealing traits about both the writings of Frederic Bastiat and libertarianism is that they are both extremely consistent. Because of that consistency, Bastiat did not have to predict Flock technology for his philosophies to apply. We are living in a time in American history where the government threatens liberty every day. How did we go from the country with the “firmest foundation of social order” to a surveillance state in our mere 250 years?
In Bastiat’s version of legitimate government any scope-creep outside protecting our right to a lawful defense is considered an inappropriate expansion of power. Where government power is expanded you can almost always expect abuse to follow. With Flock cameras they are no longer just watching criminals, they are collecting data on all citizens. We are seeing in real time what Bastiat warned against when he said that the law could be used to limit and destroy the very rights which its real purpose was to respect.
It’s important to remember that the law is always backed by force. When the government is the entity collecting information on citizens, then we know that it will inevitably lead to coercion. One single camera might not paint you as a criminal but an entire database of information that can be strategically spun might. The foreboding question here is not whether surveillance should exist but about what kind of country a surveillance state would authorize.
It’s also important to remember that there is a difference between an investigation and ongoing surveillance. In an investigation there has been some kind of violation that might warrant temporary surveillance while in the latter we are all presumably future criminals. There is also an important demarcation to be made between our personal right to privacy and our right to not be tracked. We should be in full control of choosing when to be private or public but we cannot escape a state of constant surveillance.
When the government expands its power it rarely ever recedes. If we do not stop these surveillance policies in their tracks then we will enter into a society where it will always be us versus the story our data tells about us. We will usher in a time when the law is so far outside its legitimate role that we are all already pre-guilty of crimes. Our inalienable rights as detailed in the Declaration of Independence precede Flock technology and we must act now to make sure those same rights outlive such programs.
A Dynamic Surveillance Network is simply incompatible with the founding principles of the United States of America. A handful of writers warned us exactly what would happen if the government gained too much power. The fight might look different for us than for our colonial predecessors but we must defend ourselves against all forms of overreach. We cannot sacrifice our privacy to a government that has shown over and over again that they cannot be trusted.
