One nation, under watch: New brand of largely unregulated mass surveillance is expanding in Virginia

Editors note: This is the first story in a new series examining law enforcement’s expanded use of surveillance technology in Virginia

Brandon Upchurch felt a surge of terror as Ohio police officers approached his red truck with guns drawn and a barking dog.

He didn’t understand why the cops pulled him over as he drove his cousin home from work.

“They put handcuffs on me and told me my tags were stolen,” said Upchurch, who was attacked by a canine during his arrest last month. “I kept saying ‘They’re not, they’re not.’ ”

Upchurch was telling the truth. What officers later realized is that a Flock Safety automated license plate reader camera inaccurately flagged the vehicle, according to a police report filed in the case.

The same cameras that triggered his traffic stop are increasingly being used by police departments across the country, causing alarm for privacy advocates who fear errors and abuses could have devastating consequences. As the devices proliferate in Virginia, state legislators grapple with how to address the technology, leaving localities or police to largely craft their own policies.

Hampton Roads law enforcement agencies recently installed hundreds of the motion-activated cameras, which silently snap photos of vehicles and load the images into a national database that Flock subscribers can access without a search warrant. Those who support the surveillance system hail it as a powerful public safety tool that helps police quickly track suspects or stolen vehicles. Others argue the very concept goes against America’s core values.

“There’s a simple principle that we’ve always had in this country, which is that the government doesn’t get to watch everybody all the time just in case somebody commits a crime — the United States is not China,” said Jay Stanley, senior policy analyst with the American Civil Liberties Union. “But these cameras are being deployed with such density that it’s like GPS-tracking everyone.”

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What is Flock Safety?

Many local law enforcement agencies started using Flock Safety’s automated license plate reader cameras in the past two years, with most purchasing the cameras in 2023.

Agencies surveyed in the region have the following number of Flock license plate reader cameras: York-Poquoson Sheriff’s Office (22); Chesapeake Police Department (44); Hampton Police Division (54); Portsmouth Police Department (60); Newport News Police Department (74); and Norfolk Police Department (172). The Virginia Beach Police Department installed 19 this year and has six more in the works.

Holly Beilin, director of communications for Flock, said an annual subscription with the company is $3,000 per device, meaning it would cost roughly $1.3 million each year to keep 451 cameras functional.

Beilin said the devices, which can often be spotted along roadways or perched atop traffic lights, are motion activated and collect images of vehicles and the immediate surroundings.

The motion detectors also can be triggered by movement other than vehicle traffic, such as a person walking or bicycling across the street.

Beilin said the devices are equipped with an optional character recognition software that captures and categorizes different details about a vehicle, including the color, make, model and license plate. The software runs the license plate numbers and sends alerts to law enforcement if it detects a plate associated with a missing person or an individual flagged by the FBI’s National Crime Information Center.

She said the images are otherwise encrypted, sent to the cloud and stored for 30 days before deletion. Flock subscribers can automatically access images collected by the cameras they own. They can also form data-sharing partnerships with other subscribers — including from out of state — and search each other’s databases.

“Searching for footage in the Flock system is much like searching on Google,” the company’s website states. “You can filter results by date and time, then further filter by vehicle type, color, characteristics, or any character of the license plate number.”

Nationwide, Beilin said more than 5,000 law enforcement agencies use the devices. Flock does not disclose how many have partnerships with other departments.

The company also sells its products to private groups, such as homeowners associations.

Beilin said Flock employees undergo background checks and regularly attend cybersecurity training.

“Every single company that stores data is always concerned about security breaches, which is why we have extremely stringent security measures,” she said. “Data is encrypted while on the device, encrypted while on transit to the cloud and then re-encrypted in the cloud.”

The cameras are not equipped with facial recognition technology, and Beilin said that’s not being discussed at this point.

Hampton Roads isn’t the only region embracing the technology. Police are using Flock cameras across the state, including in Richmond and Roanoke, while other agencies, such as the Charlottesville Police Department, have negotiations underway with the company.

Garrett Langley, who founded Flock Safety in 2017, hopes this is just the beginning. He told FOX6 News Milwaukee last year that he envisions a crime-free future with a Flock camera on every street corner in the nation.

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Helping the police

In Newport News, where the police department has 74 Flock cameras, Police Chief Steve Drew said the technology is a valuable tool.

“One of the things people want to know — judges, prosecuting attorneys, defense attorneys, jurors — is where is the video evidence?” he said. “Where is the technology? How do you place that person (at the crime scene)? So this helps with successful prosecutions.”

Though Drew declined to provide specific examples, the cameras are known to have played a role in a local homicide investigation.

Aonesty Selby, an 18-year-old Williamsburg high school student, was shot and killed last year and her body found in a remote area of Isle of Wight County. Andarius McClelland of Newport News is charged with murder.

Isle of Wight sheriff’s deputies learned Selby was with McClelland at his brother’s home two nights before her body was found, and that he borrowed his brother’s car to take Selby home. While authorities said other evidence tied McClelland to the crime, investigators noted that license plate reader cameras showed the vehicle left Newport News and returned from Isle of Wight that same night covered in dirt.

Portsmouth police most recently used the technology to track and locate a missing juvenile in Virginia Beach, spokesperson Elexcia Washington said.

“The system continues to show promising results for us and has been helpful in the process of bringing individuals to justice,” she wrote in an email.

Drew gave an overview of his department’s policies, saying all officers are allowed to access the system, though some must obtain permission from a supervisor. Those who use it are instructed to record the time and date and provide their reason for doing so, and a monthly report is given to the chief for review.

The department’s internal guidance states the cameras are only for “official law enforcement purposes,” including identifying stolen or wanted vehicles, stolen license plates and missing persons, or to gather information related to active warrants, crime suspects and stolen property recovery.

“At the end of the day, it is all about the safety of our community,” Drew said. “I am not interested in anybody’s personal life.”

Although Flock said it deletes images after 30 days, nothing prevents police departments from saving and storing the data longer. Drew said his department does not retain automated license plate reader camera data permanently, but would not disclose when it gets purged.

Citing tactical, strategic and operational exemptions to the Freedom of Information Act, none of the seven Hampton Roads law enforcement agencies surveyed would provide the locations of the cameras, making it difficult to determine which areas are experiencing higher levels of surveillance — or whether there are racial or economic disparities, or more cameras deployed near certain businesses or religious institutions. The Virginian-Pilot is working to collect camera locations through other methods.

Drew said the cameras are “strategically” dispersed throughout Newport News.

After Norfolk police deployed the cameras last year, officials told The Pilot the devices were placed in neighborhoods with higher crime rates and 911 calls, as well as at city entrances and exits.

“It would be difficult to drive anywhere of any distance without running into a camera,” Norfolk Police Chief Mark Talbot said during a presentation last year to City Council.

Drew added he believes public polling would show most Virginians support the cameras.

“If you had a family member that was abducted or injured, would you want us to have technology that would allow us to find or at least start an investigation quicker to solve that crime?” he asked. “Most people say yes and that’s why we have it.”

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Invasion of privacy

Privacy advocates, meanwhile, are ringing alarm bells.

Lisa Femia, staff attorney with the Electronic Frontier Foundation, an international nonprofit that defends digital privacy and civil liberties, said the cameras capture more than just one moment in time. Altogether, the devices can track a driver’s movements and shed light on their day-to-day activities.

“If someone wanted to get a sense of a person’s life, they could really make those connections and paint that picture,” she said. “You could also target drivers who visit sensitive places, such as health centers, gun shops, protests or places of religious worship.”

Some worry mass surveillance could have a chilling effect on services or activities that, while legal, are controversial or private in nature — such as reproductive health care. Virginia is the only state in the south that hasn’t enacted new abortion restrictions since Roe v. Wade was overturned, making it a hub for women seeking to terminate pregnancies.

“Increasing privacy protections for personal data is a crucial step in safeguarding health care access,” said Jamie Lockhart, executive director of Planned Parenthood Advocates of Virginia. “Data — including location data and (license plate reader) data — should not be left vulnerable.”

Femia believes there are many opportunities for abuse. Drivers have to trust the data is being used and stored responsibly by not just their local police department, but also any agencies in a data-sharing partnership with that department — as well as by Flock and its employees. Her organization encourages states or communities to outright reject the technology.

Chris Kaiser, policy director for the ACLU of Virginia, said license plate readers have been around for decades. But he believes it’s misleading to use that label to describe the Flock cameras, which he argued are a different beast.

“It’s not just the camera on a pole, it’s that these store vast amounts of data about each of our movements into the cloud,” he said. “I think it can be really easy for policy makers to look at this technology and say it’s just a baby step from what we were already doing, but it is actually a lot different.”

Kaiser said the public is often left out of discussions around the technology at the local level, with people finding out about the cameras after they are already up.

Rob Poggenklass, executive director of Justice Forward Virginia, said cases involving abuses or mistakes are popping up nationwide.

An officer with the Kechi Police Department in Kansas, for example, used Flock cameras to track his estranged wife. He was sentenced last year to probation for stalking and computer crimes, according to court documents.

Meanwhile, Upchurch, the driver in Ohio, said his experience traumatized him. The 38-year old Black man feared for his life when police stopped him with their weapons drawn.

In an interview with The Pilot, Upchurch explained he initially refused to get out of his truck because he was afraid of being shot. When he complied and stepped out, the canine attacked and bit his arm. Toledo’s WTVG-TV obtained video footage of the arrest, taken from police body cameras.

Upchurch was taken to the hospital, and has been unable to work as his arm heals. Although the truck wasn’t stolen, police charged him with obstruction and resisting arrest.

Of the surveillance system that led to his arrest, Upchurch said, “They need to take these cameras down.”

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Legislators debating guardrails

The Virginia General Assembly WTVG-TVhas weighed legislation in the past few years related to the cameras. Mass surveillance isn’t a partisan issue and has supporters and opponents on either side of the aisle .

One measure last year would have allowed the Virginia Department of Transportation to place license plate readers in highway right-of-ways. (In a 2022 opinion , Republican Attorney General Jason Miyares concluded VDOT should first obtain permission from the statehouse.) Flock representatives lobbied for the bill, but legislators killed it after constituents and more than a dozen organizations spoke out.

“When we did our calls to action, we got more people to write their legislators over this issue than any other issue we worked on,” Poggenklass said. “People were really fired up.”

A few months later, the state’s Criminal Justice Services Board — of whose many members are law enforcement officers — used more than $8 million from the American Rescue Plan Act to approve grants that helped various localities purchase Flock cameras. The move drew ire from a bipartisan group of legislators, who argued the public and statehouse had signaled they didn’t want the technology expanding.

The discussion continued during this year’s legislative session.

Sen. Lashrecse Aird, who’s been outspoken on the issue, wants powerful guardrails in place. After reviewing Flock’s mission and past interviews with the CEO, she said it appears the company is openly building a mass surveillance network nationwide.

“My biggest concern is allowing access to the data without the requirement of a warrant,” said Aird, a Petersburg Democrat. “I know law enforcement might say that is burdensome but when you are talking about mass surveillance and people’s privacy, I don’t think that is too high of a bar or expectation.”

Without strong protections, Aird fears surveillance will have a disproportionate impact on people of color.

“We see that with our standard policing activity ,” she said.

Other legislators argued against requiring warrants.

Sen. Danny Diggs, R-Yorktown, said there was no evidence the technology is being abused.

“Just think of (it) as that friend you have with a photographic memory who sits and watches the traffic on his front porch all day long,” said Diggs, speaking on the Senate floor in February. “Do I need a search warrant to ask my friend if last week he saw a license plate containing the numbers 1-2-3?”

Diggs, who served as York County-Poquoson Sheriff for more than 20 years, said legislators should not let guardrails interfere with public safety.

The General Assembly this year referred surveillance technology and license plate readers to the Virginia State Crime Commission for further study. The commission, which includes a mix of legislators and gubernatorial appointees, is expected to present its findings toward the end of the year, a staff member confirmed.

Gov. Glenn Youngkin additionally signed a bill from Del. Sam Rasoul, D-Roanoke, requiring law enforcement agencies to annually provide a list of their departments’ surveillance technologies to the commission and Virginia Department of Criminal Justice Services.

Stanley, with the ACLU, said it’s frustrating that much of the debate tends to pit public safety against civil liberties. He argued there are ways to reduce crime that don’t involve surveillance.

As police point to individual success stories, Stanley doesn’t dispute the cameras are helpful in some situations. But he believes it’s important to think about the overarching issues at stake.

“Everybody wants the police to do a good job and have reasonable tools but this is a whole new level of government power,” he said. “We have to think about the big picture here. To what extent do we want to let the government watch us?”

Katie King, katie.king@virginiamedia.com