As a political savant and the leader of Government Curated, Donald Gainsborough has dedicated his career to navigating the complex terrain where policy and legislation intersect. Today, he joins us to dissect an emerging and unexpected political alliance: a bipartisan pushback against the rapid expansion of government surveillance. We’ll explore how states are resisting federal efforts to consolidate personal data, the contentious role of technologies like automated license plate readers, the deep constitutional principles at stake, and the chilling potential for these surveillance tools to be repurposed against new targets.
We’re seeing conservative states like Montana and liberal states like Illinois enact new privacy laws. What specific concerns, from constitutional rights to data security, are uniting these politically opposed groups? Please share an example of how this unusual collaboration plays out in practice.
It’s a fascinating and heartening trend, frankly. What we’re seeing is a fundamental, cross-party agreement on the principle of limited government, even if the starting points are different. On one side, you have conservative lawmakers like Montana’s State Senator Daniel Emrich, who are driven by a deep reverence for the Fourth Amendment’s protection against unlawful search. The idea of a government entity accessing vast troves of electronic data without a warrant is, to them, a profound violation of constitutional order. On the other side, progressive leaders in states like New York and Washington are motivated by the urgent need to protect vulnerable communities—immigrants, refugees, and others—from what they see as a federal dragnet. The common enemy here is overreach. So, while a Montana legislator is focused on the constitutional sanctity of a citizen’s data, a city councilor in a sanctuary city is focused on preventing that same data from being used to deport a neighbor. The result is the same: powerful new checks on surveillance.
Automated license plate readers are credited with solving major crimes, yet cities like Denver and Syracuse have canceled contracts over surveillance concerns. How should officials weigh these public safety benefits against the risk of creating a “surveillance dragnet” that could track residents, including immigrants or refugees?
This is the central dilemma that local leaders are grappling with, and it’s an incredibly difficult balancing act. There’s no denying the technology’s power. Law enforcement will point to successes, like identifying the suspect in the Brown University shooting, and argue this is an indispensable tool. A company like Flock Safety can boast it’s in over 5,000 communities conducting 20 billion license plate reads a month, which is a staggering amount of data for solving crimes. But for cities like Syracuse, with its large refugee population, that same capability feels less like a tool and more like a threat. The concern is that you’re not just finding a needle in a haystack; you’re building a database of the entire haystack. This creates a permanent, searchable record of people’s movements, which can feel deeply intrusive and chilling, especially when records show local officers have run over 1,400 searches for ICE in a city like Denver. It transforms a public safety measure into what many feel is an oppressive surveillance network that operates without warrants or specific suspicion.
Federal agencies have sought to consolidate personal data from state-level sources like driver’s license records and food stamp programs. What practical and legal tools are states using to block this access, and how effective are these policies when local police data can still be shared?
States are primarily using their legislative power to build firewalls around their data. The most direct tool is statutory prohibition. We’ve seen at least five states, including Illinois and New York, pass laws that explicitly block their DMVs from sharing driver’s license information with agencies like ICE. This is a powerful, direct refusal. Other states, like Montana, are taking a broader approach by passing laws that require a warrant for any government entity to access electronic communications and data. This erects a legal barrier based on constitutional rights. The challenge, however, is the porous nature of data sharing in modern law enforcement. Even if a state’s DMV is locked down, a local police department might still have a contract with a private surveillance company. As we’ve seen, local officers can then run searches on behalf of federal agents, effectively creating a backdoor that sidesteps the state’s protections. So, while these state laws are a crucial first line of defense, they aren’t a complete solution.
The Fourth Amendment’s protection against unlawful search is a core argument for restricting surveillance. How does the continuous, automated collection of data from license plate readers challenge this principle, and what steps would be needed to ensure warrants are required before this information is used?
The Fourth Amendment was written in an era of physical searches—of a person’s home, their papers, their effects. It was built on the idea that the government needed a specific reason, a warrant based on probable cause, to intrude on your private life. Automated license plate readers completely invert this model. They collect everyone’s data, all the time, without any suspicion at all. Your movements are logged and stored simply because you drove down a public street. This creates a massive, searchable database of people’s lives that law enforcement can query later. It’s a “collect first, ask questions later” approach that is fundamentally at odds with the spirit of the Fourth Amendment. To realign this technology with constitutional principles, we would need clear legislation, like the new law in Montana, that explicitly defines this type of data collection as a search. Such laws would need to mandate that law enforcement obtain a warrant based on probable cause before they are allowed to query that historical location data for a specific person or vehicle. Without that legal safeguard, the protection against unreasonable search becomes functionally meaningless in our digital age.
Privacy advocates warn that surveillance tools used to track immigrants could eventually be used to monitor people seeking reproductive or gender-affirming care. Can you walk us through the technical and legal pathways by which this could happen, and what specific safeguards could prevent it?
This is the classic “mission creep” scenario, and it’s a very real danger. The pathway is distressingly simple. The surveillance infrastructure, once built, is agnostic; it doesn’t care who it’s tracking. A network of license plate readers set up to monitor the movements of undocumented immigrants can just as easily be used to monitor vehicles traveling to or from a reproductive health clinic or a hospital that provides gender-affirming care. Legally, if a state passes a law restricting these types of care, law enforcement in that state could then argue that they have a legitimate basis to use these surveillance databases to investigate potential violations. Suddenly, a tool intended for one purpose is repurposed for another. The most effective safeguard is to prevent the creation of these mass surveillance databases in the first place by strictly limiting data collection and retention. The other critical protection is to enact strong warrant requirements for accessing any of this data, ensuring that the government can’t simply go on a fishing expedition through people’s location histories, regardless of the alleged crime.
What is your forecast for the push-and-pull between state privacy laws and the expansion of federal surveillance technology?
I believe we are at the beginning of a long and contentious battle that will increasingly define American privacy rights for the next generation. We will see a growing number of states, both red and blue, continue to erect legislative barriers to protect their residents’ data. This is no longer a fringe issue; it’s becoming mainstream. However, the technological capabilities of surveillance companies and the desire of federal agencies to access this data will only intensify. The private sector moves much faster than government, and new surveillance tools will constantly emerge, creating new backdoors and workarounds. The key battlegrounds will be in the courts, which will have to interpret centuries-old constitutional rights in the context of 21st-century technology, and in state legislatures, which are proving to be the most nimble and responsive defenders of privacy today. I expect a patchwork of protections across the country for the foreseeable future, where your rights depend heavily on the state you call home.
