Flock Threatens Open Source Developer Mapping Its Surveillance Cameras
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The surveillance company Flock sent the creator of a website that maps its license plate-reading cameras a cease and desist letter demanding that he immediately stop using the name “DeFlock” on his website.
404 Media previously wrote about DeFlock, an open source mapping project created by Will Freeman that tracks the locations of automated license plate readers (ALPRs) from Flock and other companies. DeFlock currently maps more than 16,000 ALPRs around the world, which includes both Flock cameras as well as many created by Motorola.
Late last month, Flock’s lawyers sent Freeman a letter demanding that he immediately “Cease and desist all use of the name ‘DEFLOCK’ or any variation thereof, remove all instances of ‘DEFLOCK’ from your Website, advertisements, promotional materials, and any other content, and Refrain from adopting any trademarks, trade names, or branding continue to or likely to cause dilution by blurring, dilution by tarnishment, and false advertising with respect to the Flock Marks in the future.” 404 Media has obtained a copy of the letter and uploaded it here.
“It has come to our attention that you are maintaining a website and promoting a project entitled DEFLOCK, which purports to track automated license plate readers across the country, and discusses the alleged dangers of [the surveillance]. While Flock believes in open debate, it takes misuses of its intellectual property seriously,” the letter, written by Sarah M. Katz of the law firm Adelman Matz, says. “While Flock does not object to the free dissemination of truthful information, your use of the Flock Marks as part of your brand DEFLOCK is being wrongfully used to make false statements about Flock and its products and is damaging both its reputation and the goodwill associated with the Flock Marks.”
It is not clear what “false statements” Freeman is making about Flock. The letter says that it should not be called DeFlock because not all of the cameras tracked by DeFlock are Flock cameras (some are Motorola), and says “the website also implies that various license plate readers are vulnerable to security hacks, which given that all of the readers are being imputed to Flock, provides a false impression about the security of Flock Products.” On the front page of DeFlock, there is a link to a 404 Media article about a security vulnerability in Motorola ALPRs. A security researcher on YouTube and Freeman previously showed that certain Motorola ALPRs are leaking data online, and 404 Media wrote about that research. The DeFlock site says “BREAKING: Anyone Can Access Motorola ALPR Data” and links to our article, but makes no claims about Flock ALPR security.
Freeman is being represented by the Electronic Frontier Foundation and is not going to change his website, Cara Gagliano, a senior staff attorney at the EFF said in a response to Flock: “The claims alleged in your letter are groundless, and Mr. Freeman will not be complying with your demands,” the EFF’s letter says. “Because there is no legal basis for your demands, my client declines to comply with them.”
The cease-and-desist letter shows that Flock is both aware of the DeFlock website and is threatening Freeman with legal action. Flock’s letter argues that DeFlock is causing the “dilution” of Flock’s trademarks rather than “infringement” of them. This is a crucial distinction, Gagliano said.
Companies can sue for trademark infringement when they believe that a consumer is likely to confuse the infringing product for the real one; dilution cases only apply to “famous” trademarks and can be pursued when a similar product would undermine or tarnish the brand of the original. Gagliano says in her letter that DeFlock is not diluting the Flock brand because it was specifically made for the noncommercial criticism of the surveillance company.
“Federal anti-dilution law includes express carve-outs for any noncommercial use of a mark and for any use in connection with criticizing or commenting on the mark owner or its products,” Gagliano wrote, adding that a false advertising claim made in Flock’s letter does not apply because DeFlock is a noncommercial website.
“DeFlock is a grassroots project that aims to ‘shine a light on the widespread use of ALPR technology, raise awareness about the threats it poses to personal privacy and civil liberties, and empower the public to take action.’ It pursues that mission by providing information about ALPRs and maintaining an interactive, crowd-sourced map of ALPR installations,” she added. “The name ‘DeFlock’ references the project’s goal of ending ALPR usage and Flock’s status as one of the most widely used ALPR providers.”
Gagliano told 404 Media that Flock’s attempt to go after Freeman and DeFlock on a dilution claim raises serious free speech concerns. “Flock's choice to claim dilution rather than infringement is telling. Infringement requires showing that consumers are likely to be confused by the use; Flock clearly realizes how implausible that is here,” she said. “Dilution is a much more nebulous concept that we think raises serious constitutional questions. It's fortunate that dilution laws typically have enough explicit exceptions for claims to fail in their face in cases like this, but it's still much too broad a doctrine with little to justify it.”
Flock did not respond to a request for comment.