Federal Court Says Baltimore PD's High-Powered Aerial Surveillance Program Doesn't Violate The Constitution

Legal Issues

from the increase-resolution-to-violate-rights dept

Four years ago, the Baltimore Police Department unilaterally decided to put several eyes in the sky. The 192-million megapixel camera system capable of covering 32-square miles was sent skyward with zero public comment or input from the city. And why not? The city was barely involved. The BPD received the camera system courtesy of a private donor.

The head of the company, John McNutt, was contacted by some Texas-based philanthropists who offered to pay for the system if McNutt’s company, Persistent Surveillance Systems, would put it up in the air. What the system lacks in depth, it makes up for in breadth. Humans and vehicles are reduced to mere pixels, but the system’s ability to rewind recordings makes it possible for the PD to track movement of vehicles and people near crime scenes.

The aerial surveillance system is more re-purposed war tech. It was originally deployed in Iraq and Afghanistan under the name “Gorgon Stare.” That’s what Persistent Surveillance Systems is flying over Baltimore, this time with the city’s official blessing. After a period of public comment, the surveillance system is no longer just a test project.

The ACLU sued to block the launch of the program, citing the Supreme Court’s Carpenter decision, which adds a warrant requirement to the collection of cell site location data. It’s not an exact fit, but the Carpenter decision has been read by some courts to cover more than just location data.

Unfortunately, the ACLU’s attempt to secure an injunction has failed. The decision [PDF] doesn’t find the Carpenter decision applicable to an all-seeing-eye that can only capture the movement of pixels, rather than identifiable human beings. That being said, the planes (three of them) will fly for a minimum 40 hours a week each, resulting in six months of 12-hour-a-day coverage of nearly the entire city. (h/t Munchkin at Law)

There’s something more than a little dystopian about the program. But, despite the promise contained in the company’s name, this surveillance isn’t all that persistent.

The AIR [Aerial Investigation Research] program’s observational capabilities are limited. PSS [Persistent Surveillance Systems] cannot provide real-time surveillance. The on-board technology does not have zoom, telephoto, night vision, or infrared capabilities. The imagery is limited to “1 pixel per person” — essentially a single dot on the map. Accordingly, an individual’s characteristics are not observable in the images. As the planes will not fly at night or during inclement weather, significant gaps in the imagery data will emerge. These gaps in the record prevent the monitoring of a person’s movements over the course of multiple days.

Footage related to criminal investigations will be separated and held for up to 45 days. Suspicious pixels’ movements will be analyzed by investigators — a process the PD says will be “labor-intensive,” requiring up to one hour of investigators’ time for every two hours of movement observed.

But it won’t just be pixels moving around PSS’s 32-square-miles of footage. This system will be integrated with surveillance tech on the ground, including the city’s multiple CCTV cameras, Spot Shotter systems, and automatic license plate readers. Combining all of these elements will allow the PD to de-anonymize pixels and continue tracking of now-identifiable humans and vehicles.

Despite the concerns this integration of the city’s surveillance equipment raises, the court says it will not issue a permanent injunction against the use of PSS’s spy planes.

The record presently before this Court indicates that images produced by the AIR pilot program will only depict individuals as miniscule dots moving about a city landscape. The movement of these dots cannot be tracked without significant labor. Gaps in the imagery foreclose the tracking of a single person over the course of several days. This limited form of aerial surveillance does not constitute a “search” under the Fourth Amendment, nor does it burden First Amendment speech activities.

Even if it were a closer call, one feels the court would still have arrived at the same conclusion: the end justifies the means.

In a City plagued with violent crime and clamoring for police protections, this Court is loath to take the “extraordinary” step of stopping the AIR program before it even begins.

A bit more usefully, the court points out that not everything that identifies a person or their movements is a Fourth Amendment search, even if the Carpenter decision applied that to the collection of cell site location data.

The Plaintiffs’ argument, seeking to lump together discrete surveillance activities as one Fourth Amendment “search,” is simply without merit. Using a combination of resources and activities — including police interviews, CitiWatch cameras, license plate readers, and public records — the Baltimore Police Department may be able to reconstruct a detailed account of a person’s activities and associations. The addition of one more investigative tool — in this case, aerial surveillance — does not render the total investigatory effort a Fourth Amendment “search.”

Baltimore citizens and activists are right to be concerned about the PD’s use of near-persistent aerial surveillance. But the limitations of the system prevent it from being considered a threat to Fourth Amendment protections — at least as it’s configured now. This second pass by PSS and the BPD will be subject to far more oversight than its test run. The decision notes that the program’s efficacy will be tracked by two independent research groups and the public’s perception of the program monitored by the University of Baltimore. The program will also be subject to a “civil rights and civil liberties audit” by the New York University School of Law. And, finally, the entire program is subject to the contours of a consent decree signed with the DOJ — something that has been in place since early 2017.

At some point, the Fourth Amendment may be implicated by hours of aerial surveillance. But until the tech reaches the point where persistent tracking of individuals across an entire city is feasible, it seems unlikely any court will declare the PD’s program a violation of Constitutional rights.

Filed Under: baltimore, baltimore pd, john mcnutt, surveillanice 4th amendment
Companies: persistent surveillance systems