ACLU Decries Baltimore Cops’ Eye in the Sky

(Jerry Jackson/The Baltimore Sun via AP)

BALTIMORE (CN) — Two Baltimore political activists and a for-profit police reform think tank sued the Baltimore Police Department to stop a planned aerial surveillance system targeting car-jackers and murderers.

The system “would put into place the most wide-reaching surveillance dragnet ever employed in an American city, giving the BPD a virtual, visual time machine whose grasp no person can escape,” according to the lawsuit, filed in federal court by the Maryland chapter of the American Civil Liberties Union.

The program, dubbed Aerial Investigation Research, is funded by Texas philanthropists and operated by a company called Persistent Surveillance Systems. Planned as a six-month pilot program beginning this spring, it involves flying a small airplane equipped with a high resolution camera array over the city for 40 hours per week during daylight in fair weather.

The cameras shoot one frame per second and can resolve individual objects of a half meter or larger, creating a stop action video of all activity within its 30-square-mile coverage area.

Police hope to use the footage to track which people and vehicles converge on and leave violent crime scenes, augmenting ground-based “CitiWatch” video cameras and other information to catch armed robbers and shooters.

But the system casts too wide a net, the plaintiffs argue, violating the Constitution’s Fourth Amendment and shattering the “reasonable expectation of privacy” Americans enjoy as a matter of right.

The system was first deployed four years ago in secret and was revealed only after Bloomberg News published a profile of the company’s founder, Ross McNutt.

City officials scrambled to get information about the program and its capabilities while privacy and police reform activists denounced it as another outrage in a city beset by violence, poverty, police misconduct and civil unrest.

At the time, before funding for the plane ran out and the project was shelved, David Rocah, staff attorney for the ACLU of Maryland (and lead attorney in the present suit), likened it to hanging a GPS transponder around every citizen’s neck.

In 2012, in United States v. Jones, the Supreme Court decided that police could not slap a GPS tracker on a drug suspect’s car and track its movement without a warrant.

The late Justice Antonin Scalia wrote the majority opinion, holding narrowly that because the police had trespassed, the GPS was a search under the meaning of the Fourth Amendment.

The court did not take up the question of whether Jones had an “expectation of privacy” while driving on a public road, but the ruling did say that 28 straight days of constant tracking was over the top, constitutionally.

The government argued that Jones should have assumed his movements would be monitored because GPS is nearly ubiquitous.

Because “privacy” is determined in large part by social norms, the court has ruled that those norms—the “reasonable expectations” of ordinary people—control whether or not a given surveillance is legal. It’s a moving target, and it hasn’t moved since the 1980s, when a pair of court cases in Florida and California—Florida v. Riley and California v. Ciraolo – held that if cops in planes can see the pot farm in a private back yard, they can arrest the occupants of the house.

The AIR program goes far beyond the capabilities of a couple of police in a plane, the complaint says. Because the footage covers 90% of the city and can be saved and analyzed for days (or indefinitely), it creates a perpetual panopticon.

“Short of never leaving home when the planes are in the air, there is no way to avoid Defendants’ surveillance system,” the complaint says. “But even one’s home is not entirely safe from the surveillance, as the AIR program will also inevitably capture movements in the curtilage surrounding homes, including driveways and yards.”

“The data collected through the AIR program will amount to a comprehensive record of the movements of Plaintiffs and nearly everyone in Baltimore—facilitating an unprecedented police power to engage in retrospective location-tracking.”

Rocah says Baltimore citizens are especially vulnerable to the abuses inherent in the program.

“Baltimore is a city with a terrible history of racism and lack of accountability for abuses by police,” he says in a statement. “It’s the last place a novel system of mass surveillance should be tested.”

The plaintiffs say they worry that police will track them.

“It is disquieting to know someone is watching you all the time,” said Kevin James, a political organizer and one of the three plaintiffs, in a statement released by the ACLU. “It is dark, sinister, and unjust.”

Plaintiff Erricka Bridgeford, co-founder of the Baltimore Ceasefire 365 project, which has held quarterly “no-shoot” weekends to discourage murders, says the program will potentially get her tracked by police, since she visits every murder scene in Baltimore to talk to neighbors and family members of the victims.

“Rather than investing time and energy in futuristic surveillance, the city of Baltimore and the Baltimore Police Department should invest in programs to address the root causes of violence,” she said in a written statement.

“We are gravely concerned about the historic role surveillance has played in enabling the government to target and harm organizations with our sensibilities — those of us who have been trained and socialized into the Black radical tradition,” Plaintiff Dayvon Love, director of public policy with Leaders of a Beautiful Struggle, said in the ACLU’s statement announcing the suit.

He added, “We are adamantly opposed to a program that gives law enforcement new and improved tools to watch and potentially harm people who challenge the dominant social order and power structure.”

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