When Surveillance Outpaces the Constitution

Estimated Time to Read: 22 minutes

The Texas Department of Public Safety's (DPS) recent purchase of four surveillance-equipped Chevrolet Tahoes has generated considerable attention, largely because of the approximately $4.5 million price tag and the sophisticated technology reportedly installed inside the vehicles. According to procurement records and subsequent reporting, the SUVs will reportedly be equipped with Falconet systems manufactured by Israeli technology company Cognyte. Falconet is a cell-site simulator capable of locating mobile devices by temporarily functioning as a cellular tower, allowing investigators to identify a target phone with remarkable precision.

The purchase has understandably prompted questions about government surveillance, taxpayer spending, and law enforcement priorities. Those are legitimate conversations to have. Yet focusing exclusively on four vehicles risks missing the much larger issue they represent. The real story is not the acquisition itself. It is that advances in surveillance technology are rapidly changing what government is capable of knowing about ordinary citizens, often faster than legislatures and courts can establish the constitutional guardrails necessary to preserve individual liberty.

Every generation confronts technologies the Framers of the Constitution could never have imagined. Telegraphs, telephones, automobiles, airplanes, computers, smartphones, and artificial intelligence (AI) have each transformed society in ways previous generations could scarcely comprehend. None of those innovations, however, altered the underlying purpose of the Fourth Amendment. The constitutional question has never been whether government should use new technology. The question has always been whether constitutional limits remain meaningful after technology expands the government's ability to observe, collect, and analyze information about the people it serves.

The Texas DPS purchase should therefore be viewed as something much larger than a procurement story. It is an opportunity to ask whether Texas's legal framework governing government surveillance is keeping pace with twenty-first century technology. That conversation extends far beyond cell-site simulators. It encompasses automated license plate readers (ALPRs), geofence warrants, connected vehicle data, facial recognition software, AI, and future technologies that have yet to be invented. Collectively, these capabilities are reshaping the relationship between citizens and government in ways that demand thoughtful public policy rather than reactive legislation.

The Fourth Amendment Was Written to Limit Government Power

Modern debates about surveillance often begin by examining the technology itself. That is understandable, but it also risks overlooking the constitutional principle that has governed government searches for more than two centuries. The Fourth Amendment was not written to regulate particular investigative techniques. It was written to limit government power.

The historical context matters. Before the American Revolution, British authorities frequently relied upon "writs of assistance," broad search warrants that allowed customs officials to search homes, businesses, and warehouses without identifying a specific suspect or particular location. These writs contained few meaningful limits, required little judicial oversight, and granted government officials sweeping authority to conduct exploratory searches in hopes of discovering evidence of wrongdoing. James Otis' famous challenge to those writs in 1761 helped crystallize colonial opposition to arbitrary government power, leading John Adams to later remark that "then and there the child Independence was born."

The Fourth Amendment was the Founders' answer to that experience. Rather than granting government broad authority to search first and justify later, it established several enduring principles that remain central to American constitutional law today. Government must generally establish probable cause before conducting a search. Warrants must particularly describe the place to be searched and the persons or things to be seized. Most importantly, government must direct its investigative authority toward identified individuals based upon individualized suspicion rather than casting a wide net in hopes of finding evidence after the fact.

Those principles were not designed to frustrate legitimate law enforcement. They were designed to preserve liberty by ensuring that government power remained subject to meaningful constitutional limits. The Founders understood that every government possesses a natural tendency to accumulate additional authority over time. Constitutional safeguards exist precisely because good intentions alone are insufficient to protect individual freedom.

Although the Framers could not have imagined smartphones, cloud computing, or AIe, they clearly understood the danger posed by unlimited government search authority. The technologies have changed dramatically since 1791. The constitutional concern has not.

Modern Surveillance Has Changed the Constitutional Equation

For most of American history, surveillance contained its own natural limitations. Following a suspect for several weeks required numerous officers, considerable time, and substantial public resources. Conducting long-term surveillance on dozens of individuals simultaneously was practically impossible. Investigative authority was restrained not only by constitutional doctrine but also by the simple realities of manpower, cost, and logistics.

Technology has fundamentally altered that equation.

Today, a single ALPR can document every vehicle passing through an intersection twenty-four hours a day. A geofence warrant can compel a technology company to identify every mobile device located within a defined geographic area during a specified period. Connected vehicles continuously generate detailed telematics information regarding location, speed, braking, acceleration, occupancy, and driving behavior. Artificial intelligence can analyze millions of records in seconds, identifying patterns that would have taken human investigators weeks or months to discover.

The Falconet systems reportedly purchased by Texas DPS illustrate this transformation particularly well. Unlike traditional investigative techniques, a cell-site simulator temporarily impersonates a legitimate cellular tower, prompting nearby mobile phones to communicate with the device before reconnecting to their carrier's network. Investigators can then isolate the target device they are attempting to locate. That capability may prove invaluable when searching for kidnapping victims, violent fugitives, or individuals posing imminent threats to public safety.

Yet the technology also raises important constitutional questions because it does not begin by communicating exclusively with the target phone. Instead, nearby compatible devices may briefly interact with the simulator before investigators determine which device belongs to the intended suspect. Depending upon where the technology is deployed, that process may involve numerous uninvolved individuals who are not suspected of criminal activity.

None of this necessarily renders the technology unconstitutional. The Constitution does not prohibit government from employing effective investigative tools. Rather, it requires that those tools operate within meaningful constitutional boundaries. As surveillance technologies become increasingly sophisticated, the challenge facing lawmakers and courts is ensuring that the principles embodied in the Fourth Amendment remain as effective in the digital age as they were when government searches involved little more than paper records and locked doors.

The more profound constitutional change, however, is not any single surveillance technology. It is the cumulative effect of all of them working together.

Perhaps the most significant development in modern surveillance is not the emergence of any single technology. It is the ability to aggregate information collected from many different sources into a comprehensive picture of an individual's daily life. A single ALPR reveals very little. A single cell phone connecting to a nearby tower is similarly unremarkable. A connected vehicle recording one trip offers limited insight. When those data points are accumulated over weeks, months, or years, however, they begin to reveal something far more revealing than any individual observation ever could.

Long-term location information tells a remarkably detailed story about an individual. It can identify where someone lives and works, where they worship, where they receive medical treatment, where their children attend school, which political meetings they attend, and with whom they regularly associate. It can expose intimate details about religious beliefs, professional relationships, medical conditions, and personal habits without a single conversation ever being overheard. What once required an extraordinary commitment of investigative resources can now be reconstructed through the analysis of digital records generated during ordinary daily life.

That transformation is significant because it removes much of the natural friction that historically limited government surveillance. In previous generations, practical constraints often served as an additional safeguard against widespread monitoring. Investigators had to decide whether devoting officers and resources to prolonged surveillance was justified by the seriousness of the suspected offense. Modern technology dramatically reduces those costs. Once deployed, surveillance systems can continuously collect, store, and analyze information with relatively little human involvement.

The constitutional concern, therefore, is not simply that technology has become more effective. It is that technology has fundamentally altered the scale, duration, and efficiency of government surveillance. The Fourth Amendment was written in an era when government searches were naturally constrained by time, distance, manpower, and expense. Today, many of those practical limitations have disappeared. That reality does not diminish the Constitution's relevance. It makes its protections more important than ever.

The Courts Are Beginning to Catch Up

Fortunately, the judiciary has increasingly recognized that digital technologies require renewed constitutional scrutiny. During the past two decades, the United States Supreme Court has issued a series of decisions acknowledging that technological advances can dramatically alter the balance between legitimate law enforcement interests and individual privacy. Rather than treating digital information as simply another form of physical evidence, the Court has begun recognizing that certain technologies enable government to learn far more about an individual's life than traditional investigative techniques ever could.

One of the first major developments came in United States v. Jones (2012), where the Supreme Court concluded that attaching a GPS tracking device to a vehicle and monitoring its movements constituted a Fourth Amendment search. Although the majority relied upon a property-based analysis, several concurring justices emphasized something even more significant: prolonged electronic surveillance fundamentally differs from ordinary visual observation because of the comprehensive picture it creates over time. The concern was not simply that government knew where someone had traveled on a particular day. It was that continuous monitoring could reveal the "privacies of life" through the aggregation of countless ordinary movements.

That reasoning became central six years later in Carpenter v. United States. There, the Court held that individuals generally retain a reasonable expectation of privacy in historical cell-site location information maintained by wireless carriers. Rejecting a broad application of the traditional third-party doctrine, Chief Justice John Roberts explained that detailed location records reveal far more than isolated pieces of information. They allow government to reconstruct a person's physical movements with extraordinary precision, exposing familial, political, religious, and professional associations in ways that previous generations of investigators could never have accomplished without extraordinary effort.

Most recently, the Supreme Court extended those principles in United States v. Chatrie, holding that obtaining geofence location information constitutes a Fourth Amendment search. Although the Court did not prohibit geofence warrants altogether, it rejected the government's argument that location information loses constitutional protection merely because it is maintained by a technology company rather than the individual directly. Instead, the Court reaffirmed that digital location information deserves meaningful constitutional protection and returned the case to the lower courts to determine whether the warrant satisfied the Fourth Amendment's separate requirements of probable cause and particularity.

These decisions are noteworthy not because they address every surveillance technology currently available to law enforcement. They do not. The Court has never specifically ruled on ALPRs, Falconet systems, or many other emerging investigative tools. Their importance lies elsewhere. Collectively, they establish a broader constitutional principle: advances in technology do not diminish the protections guaranteed by the Fourth Amendment. If anything, they reinforce the need to ensure that constitutional safeguards evolve alongside the capabilities of modern surveillance.

Texas Policy Research (TPR) has previously examined several of these developments in greater detail, including the Fifth Circuit's landmark decision regarding geofence warrants, the Supreme Court's recent digital privacy jurisprudence, and the growing deployment of automated license plate readers throughout Texas. Although each addressed a different technology, together they illustrate a judiciary increasingly recognizing that constitutional principles must remain meaningful regardless of how surveillance capabilities evolve.

Texas's Constitutional Tradition

While much of the national discussion focuses on the Fourth Amendment, Texans should remember that the Texas Constitution contains its own protection against unreasonable searches and seizures. Article I, Section 9 closely mirrors the language of the Fourth Amendment and reflects Texas' longstanding commitment to limiting arbitrary government power. Although Texas courts often interpret the two provisions similarly, Article I, Section 9 remains an independent source of constitutional protection and reflects the state's own legal tradition.

That distinction is important because Texas has historically approached privacy differently than some other states. Unlike California, whose constitution explicitly recognizes a right to privacy, Texas generally protects privacy indirectly through constitutional limitations on government authority, statutory safeguards, and judicial interpretation. In other words, Texas has traditionally focused less on creating broad standalone privacy rights and more on ensuring that government remains constrained by meaningful constitutional limits.

That philosophy aligns closely with the broader tradition of limited government that has long characterized Texas public policy. The question before lawmakers is not whether to create entirely new constitutional rights. Rather, it is whether existing constitutional principles remain adequate as government acquires increasingly sophisticated tools capable of collecting, storing, and analyzing unprecedented amounts of information about ordinary citizens.

The distinction may appear subtle, but it has important policy implications. This debate is not fundamentally about whether Texans possess a generalized right to privacy. It is about whether government should remain subject to the same constitutional limitations regardless of how powerful its investigative technologies become. That is not a new constitutional principle. It is an old one applied to modern circumstances.

Privacy Is Becoming Common Ground

Debates over digital privacy and government surveillance are often portrayed as fundamentally partisan. In reality, the issue is beginning to transcend many of the traditional political divisions that define modern public policy. While Republicans, Democrats, and Libertarians continue to disagree on taxation, education, healthcare, and countless other issues, each has independently recognized that advances in surveillance technology deserve greater legislative attention. Although their underlying philosophies differ, the shared concern itself is significant. It suggests that digital privacy is emerging as one of the few constitutional questions capable of generating meaningful dialogue across ideological lines.

The 2026 Republican Party of Texas Platform reflects that growing concern in several ways. The platform calls upon lawmakers to protect Texans' "current and historic technologically available location data" by requiring either a warrant supported by probable cause or a lawfully obtained subpoena before government may access such information. Elsewhere, Republican delegates adopted language urging the Legislature to prohibit automated license plate reader systems and ensure that vehicle tracking information is not collected, retained, or shared without judicial authorization based upon probable cause. Whether one agrees with every proposed policy, the broader message is unmistakable. Grassroots Republicans increasingly view digital location information as deserving heightened constitutional protection.

The Libertarian Party of Texas approaches the issue from a different philosophical foundation but reaches many of the same conclusions. Its platform recognizes privacy as an inherent right and explicitly opposes warrantless surveillance that infringes upon Fourth Amendment protections. Consistent with the party's longstanding emphasis on limiting government authority, Libertarians argue that technological advances should not become a justification for expanding state power beyond constitutional limits. Their concern is not simply about individual technologies, but about preserving the principle that government must justify intrusive searches before conducting them.

The Texas Democratic Party likewise identifies emerging surveillance technologies as an area requiring greater oversight and accountability. Its platform expresses concern about the misuse of artificial intelligence and integrated surveillance systems, supports stronger safeguards protecting constitutional rights from technological abuse, and calls for meaningful oversight of surveillance tools employed by government agencies. Although Democrats often frame the issue in terms of civil liberties, institutional accountability, and due process, their underlying concern closely parallels those expressed by Republicans and Libertarians: technological innovation should not outpace constitutional protections.

The significance of this convergence should not be overstated. The parties continue to disagree about the precise scope of appropriate regulation and the specific policies necessary to protect individual rights. Nevertheless, it is increasingly uncommon to find an issue where all three major political traditions independently conclude that legislative attention is warranted. That emerging consensus should encourage lawmakers to approach government surveillance not as a partisan dispute, but as a constitutional responsibility that deserves careful consideration regardless of political affiliation.

Building a Texas Digital Privacy Framework

Texas lawmakers have already demonstrated that they understand the importance of protecting sensitive personal information in the digital age. During the 88th Legislative Session (2023), they overwhelmingly enacted the Texas Data Privacy and Security Act (TDPSA), or House Bill 4 (HB 4), authored by State Rep. Giovanni Capriglione (R-Southlake), creating one of the nation's most comprehensive consumer data privacy laws. The statute regulates how many private businesses collect, process, use, store, and disclose Texans' personal information while providing consumers with meaningful rights to access, correct, delete, and restrict certain uses of that data. Significantly, the Legislature identified precise geolocation data as a category of sensitive personal information deserving heightened legal protection.

The Texas Data Privacy and Security Act represented an important policy judgment. Lawmakers recognized that rapid technological change required corresponding safeguards governing how sensitive personal information is collected and used. Consumers deserve transparency regarding the collection of their personal data, meaningful control over how that information is processed, and clear legal protections against misuse. The legislation reflects an understanding that digital information capable of revealing intimate details about an individual's life warrants greater legal scrutiny than previous generations of policymakers may have considered necessary.

At the same time, the Legislature intentionally focused the statute on the private sector. State agencies and political subdivisions are generally exempt from the law's requirements because government performs functions that private businesses do not, including criminal investigations, emergency response, and public safety operations. That distinction is understandable. Government cannot reasonably perform many of its core responsibilities under the same regulatory framework applicable to commercial enterprises.

Yet the distinction also reveals an increasingly important policy gap.

Texas has established a comprehensive framework governing how private companies collect and process sensitive personal information, but it has not established a similarly comprehensive statutory framework governing how government agencies collect, generate, retain, aggregate, analyze, and share digital location information through emerging surveillance technologies. As government capabilities continue expanding, that gap deserves thoughtful legislative attention.

The Legislature has already begun considering portions of this challenge. During the 89th Legislative Session, House Bill 961 (HB 961), authored by State Rep. Brian Harrison (R-Midlothian), proposed generally requiring warrants before accessing automated license plate reader information while limiting its use to investigations involving violent criminal offenses. House Bill 2083 (HB 2083), authored by State Rep. John Bucy III (D-Austin), approached the issue differently, proposing limitations on data retention, restrictions on third-party sharing, and additional privacy protections governing automated license plate reader systems. Although neither measure ultimately received a committee hearing in the Texas House Committee on Homeland Security, Public Safety & Veterans' Affairs, both reflected an emerging recognition that surveillance technologies deserve clearer statutory standards than currently exist.

Rather than regulating one technology at a time, however, Texas should adopt a broader constitutional approach. Technology evolves too rapidly for device-specific legislation to remain effective for long. Twenty years ago, smartphones scarcely existed. Ten years ago, few anticipated the rapid development of artificial intelligence capable of analyzing enormous datasets within seconds. The Legislature should not attempt to predict every future surveillance technology any more than the Framers attempted to predict every future method of communication.

Instead, lawmakers should regulate the exercise of government power.

Just as the Constitution establishes enduring principles rather than technology-specific rules, Texas law should establish clear standards governing government access to sensitive location information regardless of how that information is obtained. Whether investigators rely upon a cell-site simulator, an ALPR, connected vehicle telematics, facial recognition software, AI, or technologies that have yet to be developed should not determine whether constitutional protections apply. The relevant question is whether government seeks information capable of revealing an individual's movements, associations, or private activities in a manner implicating the Fourth Amendment and Article I, Section 9 of the Texas Constitution.

A comprehensive legislative framework should therefore rest upon several enduring constitutional principles. Warrants supported by probable cause should remain the default whenever government seeks to obtain or generate detailed location information capable of revealing an individual's movements, associations, or daily activities, while preserving carefully defined emergency exceptions involving imminent threats to life or serious bodily harm. Surveillance should remain particularized, focusing investigative authority upon identified individuals supported by individualized suspicion rather than broad collection designed to identify potential suspects after information has already been gathered. Information relating to innocent third parties should not remain indefinitely within government databases, and statutory standards should govern retention, deletion, and permissible secondary uses of such information. Agencies employing advanced surveillance technologies should likewise provide meaningful transparency through periodic public reporting and independent auditing so that extraordinary investigative capabilities remain accompanied by equally meaningful public accountability.

These recommendations should not be understood as restrictions upon legitimate law enforcement. Rather, they are an effort to preserve the same constitutional principles that have governed government searches for more than two centuries. Technology will continue changing. Government capabilities will continue expanding. The Legislature's responsibility is to ensure that constitutional safeguards evolve alongside those capabilities rather than falling permanently behind them.

Liberty and Public Safety Are Complementary

Discussions surrounding government surveillance often become polarized between two competing narratives. One argues that expanding surveillance capabilities are essential to public safety and that constitutional concerns should not interfere with law enforcement's ability to investigate crime. The other suggests that emerging surveillance technologies are inherently incompatible with individual liberty and should be broadly prohibited. Neither perspective fully captures the constitutional balance the Framers sought to establish.

The Fourth Amendment was never intended to prevent government from investigating criminal activity. Law enforcement agencies must possess effective tools to locate kidnapping victims, apprehend violent fugitives, dismantle human trafficking organizations, investigate terrorism, and protect communities from genuine threats. Modern surveillance technologies can significantly enhance those efforts, often allowing investigators to locate dangerous individuals more quickly while reducing the resources necessary to conduct complex investigations. Texans rightly expect law enforcement to have the tools necessary to fulfill those responsibilities.

At the same time, constitutional limitations exist precisely because government possesses extraordinary authority. History repeatedly demonstrates that powers created for legitimate purposes often expand beyond their original scope. Investigative tools developed to address violent crime may eventually be employed in routine investigations. Information collected for one purpose may later be used for another. Databases created to solve serious offenses can gradually become repositories of information concerning millions of law-abiding citizens. None of these outcomes necessarily result from bad intentions. They arise because government institutions, like all institutions, tend to expand the use of capabilities once those capabilities become available.

That is why constitutional safeguards remain essential even when government acts with the best of intentions. Warrants, probable cause, judicial oversight, and particularity do not exist because law enforcement cannot be trusted. They exist because the Constitution deliberately separates the decision to investigate from the authority to intrude upon individual liberty. Independent judicial review protects both citizens and investigators by ensuring that extraordinary governmental powers are exercised within clearly defined constitutional limits.

Meaningful privacy protections also strengthen, rather than weaken, public confidence in law enforcement. Citizens are more likely to support advanced investigative tools when they understand those technologies operate within transparent legal standards and meaningful oversight. Clear statutory rules reduce uncertainty for investigators, improve the admissibility of evidence, and reinforce public trust that surveillance authorities are directed toward legitimate public safety objectives rather than broad, suspicionless monitoring. Constitutional accountability and effective policing should therefore be understood as complementary principles, not competing priorities.

Beyond the Purchase

Eventually, the headlines surrounding Texas DPS's purchase of four surveillance-equipped Chevrolet Tahoes will fade. Another procurement will replace it. Another surveillance technology will emerge. Another constitutional challenge will work its way through the courts. The vehicles themselves will ultimately become a relatively small footnote in the much larger story of how technology continues transforming the relationship between citizens and government.

The constitutional questions, however, will remain. Artificial intelligence will become more sophisticated. Connected vehicles will generate increasingly detailed telematics data. Facial recognition systems will become more accurate. Automated license plate reader networks will continue expanding. New investigative technologies will emerge that lawmakers today cannot yet anticipate. The challenge facing Texas is not whether each individual technology should be permitted or prohibited. The challenge is ensuring that constitutional principles remain durable enough to govern technologies that have not yet been invented.

Texas has an opportunity to lead that conversation. The Legislature has already acknowledged through the Texas Data Privacy and Security Act that precise geolocation data and other forms of sensitive personal information deserve heightened legal protection when collected by private businesses. Grassroots Republicans, Democrats, and Libertarians have each recognized that emerging surveillance technologies warrant greater public discussion and legislative attention. Recent decisions from the United States Supreme Court likewise demonstrate a growing judicial recognition that digital location information implicates fundamental Fourth Amendment interests. These developments should not be viewed as isolated events. Together, they point toward the need for a more comprehensive and principled approach to government surveillance in the digital age.

The Legislature should not wait for another controversial procurement, another landmark court decision, or another rapidly evolving technology before acting. Nor should it attempt to regulate each new surveillance tool individually as it enters the marketplace. That approach will always leave public policy one step behind technological innovation. Instead, lawmakers should establish enduring constitutional standards governing the exercise of government surveillance authority regardless of the devices or software employed.

Ultimately, the purchase of four surveillance-equipped Chevrolet Tahoes is not the most important story. The more important story is whether constitutional protections are keeping pace with government capabilities.

The Fourth Amendment was never written to regulate cell-site simulators, automated license plate readers, artificial intelligence, drones, or technologies that had yet to be imagined. It was written to limit government power. That purpose has not changed in more than two centuries because the underlying principle remains timeless. Free people should not surrender their constitutional liberties simply because government acquires more efficient methods of observing them.

Every generation must decide how constitutional limits apply to technologies the Founders could never have envisioned. That responsibility now belongs to ours. The names of today's technologies will eventually change. Falconet systems will someday become obsolete. Artificial intelligence will continue evolving. New forms of digital surveillance will replace those currently making headlines. The Constitution should not have to be reinvented every time technology advances.

Technology will continue evolving. Government capabilities will continue expanding. The Constitution should continue to matter.

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