Cease-and-Desist Shifts Burden From Flock to Critics

In Newport Beach, California, a lecture series posted a photo of a legal letter from Flock Safety—a surveillance technology company that sells automated license plate readers to police departments—demanding the removal of claims about its product's accuracy and scope.

The critics said Flock was trying to suppress debate. Flock said it was protecting itself from false statements.

The unstated assumption is that the difference between defamation and criticism depends on whether the claims are true. If you say something false and damaging about a company's product, that's defamation. If you say something true, it's protected speech.

But surveillance technology doesn't work that way in practice. When Flock challenges statements about its product's false positive rate, or which jurisdictions use it, or how often it misidentifies license plates. It shifts the burden. The critic now has to prove Flock is lying rather than Flock having to prove the critic is wrong. In a defamation case, truth is a complete defense.

This only works if courts and press accept one unstated thing. Challenging a surveillance product's marketed capabilities is categorically different from challenging any other product's claims. When a car company oversells its braking system, we don't call that protected business judgment. We call it fraud. We certainly don't let them send cease-and-desists to stop people from discussing the brakes. The question isn't whether Flock's legal action was proportionate.