Appeals Court Says Baltimore PD's Aerial Surveillance Program Doesn't Violate The Constitution

from the long-term-tracking-of-people-is-fine...-as-long-as-it's-only-12-hours-a-day dept

The Baltimore PD can still use its flying spies, says the Fourth Circuit Court of Appeals. The aerial surveillance program -- first "introduced" on accident in 2016 -- allows the PD to track the movement of people across the entire city, thanks to high-powered cameras mounted on airplanes. The surveillance system (created by Persistent Surveillance Systems) can capture 32-square miles. People and vehicles are reduced to pixels despite the power of the 192-million-megapixel cameras, but combining this footage with street-level surveillance allows the PD to deanonymize moving pixels observed near crime scenes.

The entire system was paid for by a private donor, allowing the PD to sidestep its transparency obligations to the public. After the initial run ended, the PD resurrected it -- this time following the proper processes for introducing new surveillance systems to the city.

Earlier this year, a federal court rejected requests for an injunction, stating that the observations of moving pixels didn't amount to a Constitutional violation. Even though these pixels could be identified using ground-based surveillance, the court didn't see anything in the system that amounted to persistent, intrusive surveillance with Fourth Amendment implications.

The case went to the Fourth Circuit Court of Appeals. During oral arguments, the judges appeared mostly sympathetic to the city's arguments, claiming it was almost impossible to violate the rights of unidentified pixels whose movements have been observed on public streets.

The Appeals Court has delivered its decision [PDF]. And, as expected, it has declared the program to be Constitutional. The opinion opens with something suggesting the judges feel the ends justify the means.

Baltimore sadly has experienced a serious recent rise in homicides. For each of the past five years, Baltimore has been victimized by at least three hundred murders. In 2017, Baltimore experienced a higher absolute number of murders than New York City, a city with fourteen times Baltimore’s population.

It also presents this fact as though it were something that justifies persistent surveillance, rather than pointing out the shortcomings of the Baltimore PD's investigators.

Moreover, the Baltimore Police Department (BPD) has struggled to respond effectively to this increase in murders. In 2019, it cleared just 32.1% of homicide investigations, its lowest rate in several decades.

So, because murders continue to happen and the Baltimore PD seems mostly incapable of solving murders, the system is justified. As the court sees it, because it doesn't flagrantly violate rights, any rights violations it might enable are acceptable.

It is a carefully limited program of aerial observations of public movements presented as dots, and it is important at the outset to say all the things the program does not do. It does not search a person’s home, car, personal information or effects. It does not photograph a person’s features.

There are other limitations to the program. Planes can't fly in bad weather and the high-powered cameras are useless after sundown. But the planes still fly daily, if possible. The court's assumption this system will help Baltimore get a handle on its murder problem seems suspect. Data obtained through records requests show the system's failed to produce results. 700 hours of flights occurred but only led to a single arrest.

The court also claims the system can't be used to track people because [reads opinion] it can only be used to track people's movements.

There will be no live tracking of individuals. Analysts can only use AIR’s photographs to look at past movements.

So, tracking someone's past movements is apparently more Constitutional than tracking their current movements. Weird take, especially given the Supreme Court's Carpenter decision, which found that tracking people's past movements via cell site location info is unconstitutional without a warrant.

The Appeals Court says this is all very legal and very Constitutional.

In light of these precedents, we cannot hold that AIR [Aerial Investigation Research] violates a reasonable expectation of privacy. AIR is merely a tool used to track short-term movements in public, where the expectation of privacy is lessened. Such an activity is lawful in light of Knotts and Jones. And the specific tool which the BPD will use for the surveillance, aerial photography, has been sanctioned by the Supreme Court in several cases.

And this is how the Fourth Circuit says Carpenter doesn't apply:

Whereas CSLI could be used to reliably track an individual’s movement from day to day, AIR can only be used to track someone’s outdoor movements for twelve hours at most.

If there's anything positive about this decision, it's that the court has confined its decision solely to this particular surveillance program, which should prevent more intrusive programs from sneaking in under the Fourth Circuit's ruling.

Our opinion should not be overread. Although we conclude that AIR does not invade a reasonable expectation of privacy, our decision should not be interpreted as endorsing all forms of aerial surveillance. We only address the AIR program, which has built-in limitations designed to minimize invasions of individual privacy. We do not address a surveillance program that includes, for example, twenty-four hour surveillance of indoor and outdoor spaces using photographs that allow analysts to immediately identify the specific people being photographed.

The dissenting opinion says the other two judges have it wrong. There are Fourth Amendment implications and they're being ignored by the majority.

These conclusions rest on a fundamentally warped understanding of the facts, accepting the Government’s promises about the AIR program and ignoring the plaintiffs’ contrary evidence. The AIR program does, indeed, amount to long-term surveillance that compiles “a detailed and comprehensive record” of a person’s past movements. See Carpenter, 138 S. Ct. at 2215–19. Thus, Carpenter is not only relevant to this case. It controls the outcome.

The dissent goes on to point out that the arguments the majority uses to justify the surveillance under its "there's no Constitutional violation here" conclusion.

Applying that broader perspective to this case, the limitations of the AIR program that the majority emphasizes do little to distinguish Carpenter and Jones. Indeed, it is hard to reconcile the majority’s portrayal of the AIR program’s capabilities with its insistence that the program is justified because it helps BPD police crime. That the AIR program’s surveillance planes will fly only during the daylight hours and capture individuals as solitary pixels does not mean that AIR program data cannot be used to track specific individuals over time.

Presumably, the vast majority of Baltimore’s residents start and end most days in the same place: their homes. Who resides at a given address is often public information. Likewise, many people begin each day at home, then travel during the daytime based on a daily routine, and then return home again. In just one possible application, law enforcement could use AIR data to track a person’s movements from a crime scene to, eventually, a residential location where the person remains. Police could then look through time and track the movements of people from that residence. Police could use any number of context clues to distinguish individuals and deduce identity. After all, that is the very purpose of the program.

But it's the majority whose opinion counts. The Baltimore PD can continue to track residents' movements for up to twelve hours a day, day after day (weather permitting). Perhaps the Supreme Court will take up the inevitable appeal and apply its own Carpenter decision a little more rationally.

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Filed Under: 4th amendment, 4th circuit, aerial surveillance, baltimore, baltimore police, police


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  • icon
    That One Guy (profile), 16 Nov 2020 @ 2:12pm

    'Our program absolutely cannot do the thing it's meant to do!'

    Much like other groups and agencies defending pervasive spying because 'it's anonymous data!' it really doesn't take much work to demolish the argument, as the defense of it is in direct conflict with the goals. If you can't track a person with the data you're collecting then it's not going to do you much good to track/find a criminal, as at best you'll know that someone did something at some point in time, which you already knew.

    The only value programs like this have is being able to track a person's movements, that's the entire point, so to pretend that it's not a privacy violation because you can't identify someone is beyond absurd.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Nov 2020 @ 4:17pm

    Perhaps the Supreme Court will take up the inevitable appeal and apply its own Carpenter decision a little more rationally.

    Or perhaps the citizens will vote to reduce funding to their obviously overfunded police department and they'll have to shut it down due to budgetary restrictions.

    This kind of thing will only get more and more common over time. Governments around the world have always been paranoid about the people they govern and cameras everywhere are more and more commonplace. We the people can either accept this surveillance / reduced freedom without cause or we can force our government to do something about it. I'd like to be optimistic but that's getting harder and harder, too.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Picture Element, 16 Nov 2020 @ 4:24pm

    Lemme get ya clear: "street-level surveillance" is okay?

    combining this footage with street-level surveillance allows the PD to deanonymize moving pixels observed near crime scenes.

    Are you objecting to the "street-level surveillance" or not? If not, then this piece reads as accepting that as "normal" while feebly protesting a new gadget.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Picture Element, 16 Nov 2020 @ 4:25pm

      Re: Lemme get ya clear: "street-level surveillance" is

      Do you grasp that you're living in the 21st Century and under constant surveillance in every way that's technically possible?

      Why this piece over a few pixels? You ignore GOOGLE'S surveillance of every web-site you click, Facebook and other corporations recording your mouse / finger motions, and other DIRECT surveillance! -- When it's by corporations, surveillance is okay?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Nov 2020 @ 4:31pm

        Re: Re: Lemme get ya clear: "street-level surveillance"

        No one here ignores this, and to say so is either wildly disingenuous or completely ignorant of every piece and comment here discussing it.

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 17 Nov 2020 @ 3:20am

        Re: Re: Lemme get ya clear: "street-level surveillance"

        "Why this piece over a few pixels? You ignore GOOGLE'S surveillance of every web-site you click..."

        Bullshit, we've argued quite a lot about Google recording details they probably shouldn't.
        And discerning people should probably realize that if they use a Google account to log on to a Google service which certifies a webpage using google-served ads then they shouldn't be surprised that the one actor they gave all that information voluntarily tries to apply said information to obtain revenue. There's a limit at which point the law just won't help protect the privacy of people so intent on giving that privacy away.

        "...Facebook and other corporations recording your mouse / finger motions, and other DIRECT surveillance!"

        If you have any indication Facebook employs keylogger trojans then why are you telling us rather than walk into the nearest police station and report that crime? Ah, because you're talking out of your ass again, Baghdad Bob, and Facebook does no such thing? As per usual your hankering to Blame Big Tech interferes with what little is left of the short-circuited sad remnants of the machinery you use for coherent thought.

        "When it's by corporations, surveillance is okay?"

        If you are on their turf you can't complain their security cameras record you along with every other visitor. So yea, any private entity is entitled to surveill their own damn property.

        Pretty much par for the course you don't see the difference between privately owned webpages and public space.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Nov 2020 @ 5:00am

        Re: Re: Lemme get ya clear: "street-level surveillance"

        "Why this piece over a few pixels? You ignore GOOGLE'S"

        Look - over there!
        Shiny thing!

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Nov 2020 @ 4:32pm

    The dissent goes on to point out that the arguments the majority uses to justify the surveillance under its "there's no Constitutional violation here" conclusion.

    I am thinking that that that was going somewhere, but then didn't.

    reply to this | link to this | view in chronology ]

  • identicon
    Jamie, 16 Nov 2020 @ 5:49pm

    Release the data.

    Since it can't track people, judges should feel perfectly safe with this data public.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 16 Nov 2020 @ 6:34pm

    It would be a shame if someone published a detailed report about the Judges movements based on these pixels.

    They cops have millions invested in tanks & riot gear... yet can't investigate crime without having to watch the entire city 24/7 and then search for possible bad guys later.

    These are the same sorts of people who have access to those databases with details about everyone & they keep violating the law & policies to get a date. There is NO WAY this would ever be miss used by a jealous husband or ex to stalk who their partner or former partner has moved onto.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Nov 2020 @ 10:47pm

    Reminds me of Google's insistence that their "smart" email features don't involve people looking at the contents of your emails, even though they definitely do and in fact have to in order to deliver the service.

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 17 Nov 2020 @ 5:46am

    Not Real time? The Dead Past

    Isaac Asimov wrote a short story about a device that could be used as a television camera into history, titled "The Dead Past". At the end, the protagonist says "but it only sees what's in the past" and one of the government agents working to suppress the invention says "What's the past? Yesterday? Ten minutes ago? A minute ago?" The agents had been tracking him building an illegal version … by using their own history viewer.

    Same here - technically any surveillance is in the past - even if it's a few milliseconds. Doe a minute or two old qualify as "in the past"? This whole article says nothing, either, about tracking vehicles. With proper recording, the police can say "There! That vehicle! Where did it come from, where did it go? Playback..." And like using traffic cams for personal identification, can use those same cameras for license plate ID's.

    Which we might be fine with, if the police didn't do stupid things like raid the wrong address, or arrest someone for driving their own "stolen" car that was recovered weeks ago. Not to mention malicious actions like fabricating evidence when necessary so as to raid innocent people's addresses with no-knock warrants and tossing grenades at babies.

    reply to this | link to this | view in chronology ]

  • icon
    sumgai (profile), 17 Nov 2020 @ 11:15am

    How can this be unexpected?

    This kind of decision comes from the courts who believe that cash money can be sued, and that it has no right to representation when it wants to return to its rightful owner. IOW, watching an "anonymous" pixel go about its business is the same as assigning a new owner to "anonymous" cash.

    Interestingly enough, I was about to spout off about what hours the greater number of murders occur, and decided to do some research - turns out I would've been wrong. Seems like 65% percent of murders occur during daylight hours. Damn but those anonymous pixels are a bloodthirsty lot, aren't they?

    Also of interest is the fact that neither Baltimore nor Maryland are in the running for cities/states with the most murders - they're well down in the middle of the pack. (Source: FBI report, via reference.com)

    reply to this | link to this | view in chronology ]


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