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

Privacy

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.

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