Who Authorized America’s National Surveillance Network?

There is a question about Flock Safety that Americans are not asking loudly enough. Until this week, it appeared to be a question Members of Congress were not asking at all:

Who authorized the construction of a nationwide surveillance network capable of recording the movements of Americans across nearly the entire United States?

This is not hypothetical. On August 26, 2026, Senator Josh Hawley, Chairman of the Senate Judiciary Subcommittee on Crime and Counterterrorism, opened an investigation into Flock Safety. His letter describes more than 120,000 cameras operating across 49 States and processing more than 20 billion vehicle scans every month.  Then Senator Hawley wrote a sentence that ought to stop every American in his tracks:

“Congress never authorized the network your industry has built.”

That statement should generate far more questions than answers.  Because if Congress did not authorize it, who did?

The Question Is Bigger Than Cameras

There will undoubtedly be a debate about privacy, the Fourth Amendment, warrants, artificial intelligence, data retention, law-enforcement necessity, and whether an American traveling upon a public highway can constitutionally be converted into a data point in a permanent, searchable record of his movements.  Those are important questions.  But I want to ask a different one:

How did we get here?

How did a private corporation establish an interconnected commercial surveillance infrastructure extending through 49 States before the federal government apparently stopped to determine what it was, what rules governed it, who could access it, and what limitations protected the American people?

Whatever else one wishes to call this system, it is difficult to call it merely local. Its commercial operations cross State boundaries. Its data crosses jurisdictions. Its customers include governmental entities. Its usefulness depends upon transforming thousands of individual cameras into something vastly more powerful through interconnection.  And somehow Congress is only now asking questions?  That raises five questions Americans deserve to have answered.

Question One: Where Is Congress?

Article I, Section 8 delegates to Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

I have spent years teaching that the modern federal government has stretched that language far beyond its original constitutional boundaries. But that argument is not necessary today.  For purposes of this discussion, I am willing to give Washington its own interpretation of its own power.

In Gibbons v. Ogden, Chief Justice John Marshall described commerce as more than simply buying and selling. More than a century later came Wickard v. Filburn.  Roscoe Filburn grew wheat on his own Ohio farm, some of it for use on that farm, including feeding his livestock and supplying his household. The federal government nevertheless regulated how much wheat he could produce because the Supreme Court accepted that his activity, aggregated with that of others, could affect interstate commerce.  Think about that.

Washington could reach the wheat growing in an Ohio farmer’s field because the wheat he did not buy might affect a national market.

Now consider Flock.  More than 120,000 cameras across 49 States. Approximately 20 billion vehicle scans every month. An interconnected system serving law-enforcement agencies and communities across the country.  And Congress’s answer is:

We never authorized this?

If a farmer’s wheat consumed on his own farm can become a federal concern because of its theoretical aggregate effect upon interstate commerce, how does a commercial enterprise actually operating across 49 States and creating an interconnected national database escape Washington’s attention?  I am not arguing that Congress should possess the enormous regulatory authority the Supreme Court has permitted it to exercise.  I am asking Congress to explain its own contradiction.

Congress cannot claim virtually boundless authority when regulating the property of ordinary Americans and suddenly discover constitutional modesty when confronted with a corporation constructing a nationwide surveillance infrastructure.

Congress cannot have it both ways.

Question Two: If This Is Not Interstate Commerce, What Is?

Perhaps Washington will answer that individual cameras are purchased locally by police departments, municipalities, homeowners’ associations, businesses, or communities.  Fine.

Then explain the network.

Filburn’s wheat physically sat inside Ohio. Under Washington’s own modern Commerce Clause doctrine, physical location did not end the inquiry.  Neither should it here.  Flock does not merely sell isolated cameras. The value of the system is its connectivity. A camera in one community generates information capable of becoming useful somewhere else. The product is not merely the pole beside the road.

The product includes the information infrastructure behind it.

If that does not warrant congressional attention under the federal government’s own understanding of interstate commerce, Congress owes the American people an explanation of what possibly could.

Question Three: If This Is a National-Security Concern, Where Is the National Oversight?

Suppose a foreign government announced that it had placed 120,000 cameras throughout 49 American States capable of recording billions of vehicle movements every month.  Would anyone in Washington describe that as merely a collection of local cameras?  Of course not.  Congress would hold hearings. Intelligence committees would demand briefings. National-security agencies would investigate the infrastructure, its databases, who could access them, the possibility of compromise, and the consequences if the information fell into hostile hands.  The reason is obvious:

A database capable of reconstructing movement on a national scale is inherently more consequential than any individual camera that supplies it.

Yet when the infrastructure develops commercially and incrementally, municipality by municipality, we are apparently expected to regard the finished network as thousands of unrelated local purchases.  At what point did someone in the federal government recognize what was being constructed?  At 10,000 cameras?  50,000?  100,000?  Twenty billion scans per month?  And if nobody recognized it, that answer may be more disturbing than the alternative.

Question Four: If Congress Did Not Authorize It, Which Executive Agency Takes Responsibility?

If Congress did not authorize this network, the next question belongs to the Executive Branch.  Which federal agency knew?  Which reviewed it?  Which considered the privacy, data-security, law-enforcement, interstate-commerce, procurement, or national-security consequences?  These questions are not abstract. Flock acknowledges federal customers and prior pilot projects involving federal law-enforcement agencies. Flock maintains that federal agencies do not receive automatic nationwide access and that local customers control whether their information is shared with federal authorities.  That distinction is important.  But it creates another question:

If federal agencies were testing, purchasing, or using this technology while an interconnected national network developed around them, what exactly did the federal government understand about the system it was helping to evaluate and use?

Congress should also follow the money.  Were federal funds used to purchase portions of this infrastructure? Which departments approved them? What did those agencies understand they were funding?  There is an enormous difference between Washington saying:

“We did not create this network.”

and Washington establishing:

“We neither created it, financed it, participated in it, used it, nor knew what it was becoming.”

Congress should determine which statement is true.  And if every agency answers, Not us, then:

Who was responsible?

Government is supposed to be accountable. There should be a name, an office, a statute, a committee, a hearing, a report, a decision, or at minimum some identifiable governmental process through which a surveillance infrastructure of national consequence came under scrutiny.  If none exists, Americans deserve to know why.

Question Five: Who Decided Flock Was Different?

For generations, Americans have been told that modern life requires federal regulation because our activities are interconnected.  Grow wheat on your property: interstate commerce.  Operate a business: interstate commerce.  Manufacture a product: interstate commerce.  Employ workers: interstate commerce.  Buy a gun: interstate commerce.  Move information, money, goods, services, or people through a national marketplace and Washington rarely struggles to locate constitutional authority.  Congress has built an enormous regulatory state upon precisely that premise.  Yet a corporation constructs a technological system spanning 49 States, connecting communities and governmental agencies and processing tens of billions of records concerning Americans’ movements every month and Congress wakes up after the system exists to announce:

We never authorized it.

Then tell us who did.  And if nobody did, tell us why nobody had to.  Was Flock exempt from federal oversight? Who made that determination? When did federal agencies know the scope of the network? When did Congress know? Were federal funds involved? Do federal agencies access its information? Has anyone conducted a national-security assessment of what happens if data of this magnitude is compromised, abused, purchased, subpoenaed, shared, or accessed by hostile actors?  These are not accusations.  They are questions.  And that distinction matters.

Congress Cannot Have It Both Ways

Washington cannot invoke an expansive interpretation of federal power against ordinary Americans and then discover federalism when politically inconvenient questions arise.  If Washington possesses enough constitutional authority to tell Roscoe Filburn how much wheat he may grow on his own farm because his private consumption might influence a national market, it cannot plausibly tell Americans that a commercial surveillance enterprise spanning virtually the entire Union somehow appeared beyond the horizon of federal responsibility.

That is not a constitutional limitation. That is a failure of accountability.

Our constitutional structure was deliberately designed around accountability. Legislative power was placed in Congress because legislators could be identified and removed. Executive power was vested in a President so responsibility for executive action could be located.  The Founders could never have technologically imagined Flock.  But they would have immediately recognized the political danger:

enormous power without identifiable accountability.

That danger was familiar to the generation that fought the writs of assistance.  In 1761, James Otis challenged general writs that conferred sweeping discretionary search authority upon British customs officials. John Adams, who witnessed Otis’s argument, later remembered the occasion as one of the sparks from which American independence was born.  There is a lesson in Otis that reaches beyond whether any particular Flock search violates the Fourth Amendment.

Generalized power obscures responsibility.

The question here is not merely whether a camera may photograph a license plate visible from a public road.  It is how thousands of cameras, databases, government customers, private contractors, software systems, sharing agreements, federal pilots, local purchases, and perhaps federal dollars accumulated into something no single participant will admit to having created:

a national surveillance infrastructure.

If every participant can say, I only purchased a camera, I only approved a grant, I only shared data, I only conducted a pilot, I only wrote the software, or I only used the database, then we have recreated in technological form precisely the danger constitutional government was designed to prevent:

power everywhere, responsibility nowhere.

A national surveillance infrastructure exists.  It records billions of movements. It connects communities across State lines. Law enforcement uses it. Private technology operates it.  And the Chairman of a Senate Judiciary Subcommittee tells us:

“Congress never authorized the network your industry has built.”

Then Congress should determine:

Who knew what this network was becoming? Who financed it? Who tested it? Who used it? Which congressional committees exercised oversight? Who decided no additional authorization was necessary?

And if every participant answers that someone else was responsible, then the American people deserve an answer to the simplest question of all:

Who authorized America’s national surveillance network?  Because in a constitutional republic, neither “nobody” nor “everybody” is an acceptable answer.