Fourth Circuit Appeals Court Seems Skeptical That Baltimore's Aerial Surveillance System Violates The Fourth Amendment

from the aloft-for-now dept

The legal fight over Baltimore's aerial surveillance system continues. Airplanes armed with powerful cameras fly constantly over the city, allowing law enforcement to view the movements of people and vehicles over a 32-square mile area. The resolution may be high (192 million megapixels) but the area covered reduces people to (nearly) unidentifiable dots on a screen. However, these recordings can be accessed to trace movements of pixels/people as they move to and from suspected crime scenes.

The city isn't paying a dime for these cameras and airplanes. The equipment -- provided by Persistent Surveillance Systems -- is paid for by a private donor. This perhaps explains why the city chose to roll it out with zero public notice back in 2016. After a brief shutdown, it has resumed, with a bit more public involvement. It may be audacious, but it hasn't been all that successful. Reports show the program logged 700 flights but only one arrest.

The ACLU sued, claiming this persistent surveillance of nearly everyone in the city violated the Fourth Amendment. The federal court disagreed, even taking into consideration the ability of the program to engage in persistent tracking of individuals when combined with the PD's cameras on the ground. Despite the word "persistent" being used by the company itself, the program is far from persistent, with darkness preventing recording and inclement weather occasionally grounding spy planes.

There's an appeal underway, but as Louis Krass reports for Baltimore Brew, the ACLU doesn't appear to have found much more sympathy one level up. The ACLU argued the untargeted surveillance system is an unreasonable search. In other words, Baltimore residents would not consider it reasonable to have their public movements surveilled for up to 12 hours a day for six months straight.

Judge J. Harvie Wilkinson disagrees.

“Whose constitutional rights is this violating?” Wilkinson, a Reagan appointee, asked.

“These are simple observations of public movements, and it’s not inside someone’s dwelling, it’s public streets, where someone’s expectancy of privacy is minimal,” he said. “We’re not talking about excessive police force, so is it the right of the pixel whose rights are being violated?”

The judge is right that the expectation of privacy is lower in public areas. But this is too reductive. A pixel isn't just a pixel -- incapable of having its rights violated. It's a person, even if that person can't be clearly identified using these recordings alone. The entire purpose of the aerial surveillance system is to help police identify criminal suspects. And police do this by cross-referencing this footage with surveillance equipment on the ground, which is completely capable of turning a "pixel" into a person.

But Wilkinson isn't the only judge being asked to rule on this. Judge Roger Gregory is far more critical of the government's arguments. The government said there were no Constitutional concerns in tracking the movements of millions of Baltimore "pixels" since the PD was only interested in the "pixels" who may have been near a crime scene. Most of the recordings collected are never used by the Baltimore PD's analysts.

That doesn't make it okay, says Judge Gregory.

Gregory, a Clinton appointee, countered that it is unconstitutional to gather such information in the first place.

“That would turn the Fourth Amendment on its head,” he said. “That’s like invading someone’s home with a camera and taking a photograph of you, then say, ‘It’s no problem because we never developed the film.’”

It seems unlikely the Appeals Court will be any more impressed with the ACLU's arguments. As long as people are still rendered as pixels -- and planes incapable of capturing footage 24 hours a day -- there appears to be very little violation of privacy. If there's no sympathy for the mosaic theory of the Fourth Amendment -- where multiple Constitutional surveillance techniques combine to form an unconstitutional invasion of privacy -- Baltimore residents will still be watched by multiple eyes in the sky.

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Filed Under: 4th amendment, 4th circuit, aerial surveillance, baltimore, drones
Companies: persistent surveillance systems


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  • icon
    Coyne Tibbets (profile), 21 Sep 2020 @ 9:05pm

    Curtilage

    “These are simple observations of public movements, and it’s not inside someone’s dwelling,

    You'd think a judge would know what "curtilage" is.

    Especially since he is probably having Persistent Surveillance Systems exclude his curtilage from observation.

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

  • identicon
    Anonymous Coward, 22 Sep 2020 @ 1:06am

    Drones can be jammed.

    When there was a stricter lockdown here earlier this year where you were not supposed to leave the county, I think it was enforced with drones.

    The "screen share" on cell phones to your TV set uses the same frequencies as the video links that drones use, and for a while my neighboir had terrible problems with screen share from phones suddenly cutting off and not being able to connect.

    I think it could have been someone jamming police drone video links so that their car could not be filmed and they could come into the county without being observed by any poilce drones, which are the same kind of drones that hobbyists use.

    It is something we have to put up here, becuase jamming drone video links diod not break FCC rules (though some state laws may have been broken).

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

    • identicon
      Anonymous Coward, 22 Sep 2020 @ 6:29am

      Re:

      The problem is these are not drones. They are human piloted single prop planes that fly over the city in a circle.

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

  • identicon
    منجرة بالدمام, 22 Sep 2020 @ 10:39am

    منجرة بالدمام

    موضوع ممتاز جدا

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

  • icon
    Atkray (profile), 22 Sep 2020 @ 10:43am

    ACUL needs to get 6 months of the pixel that represents this judge and submit it as exhibit A.

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

  • icon
    kag (profile), 22 Sep 2020 @ 12:31pm

    Police

    If the city could afford to put a police officer on every corner, how would that be much different?

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


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