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Privacy and Aerial Surveillance

  • March 15, 2021
  • Clayton Rice, Q.C.

Aerial surveillance includes monitoring by drones, unmanned aircraft and surveillance planes operated by human pilots. The concern about the privacy implications arising from the warrantless use of aircraft to take photographs and videos has increased over the last year with their deployment by municipal law enforcement agencies. The concern is heightened when airborne technology is used in tandem with the interception of cellphone communications, facial recognition software and automated license plate readers.

1. Introduction

The Baltimore Police Department (BPD) has become one of the more aggressive law enforcement agencies in the use of highly invasive technologies. Readers of On The Wire may recall the controversy six years ago over its warrantless use of mobile device identifiers often called Stingrays. (here) Last year, Baltimore police used a “panopticon-like system of surveillance” facilitated by a partnership between BPD and an Ohio company called Persistent Surveillance Systems (PSS). From April to October 2020, for at least forty hours a week, PSS flew surveillance aircraft over thirty-two square miles of Baltimore enabling the identification of individuals from images captured by the planes. The program, and aerial surveillance generally, have drawn the scrutiny of the Electronic Frontier Foundation and the Electronic Privacy Information Center. (here and here)

2. The Agreement

On March 17, 2020, the Baltimore police entered into an agreement with PSS detailing how the $3.7 million pilot program would be funded, the privacy protections to be implemented and how the program would be evaluated. The cost was met by private donors – wealthy Texas philanthropists John and Laura Arnold through their organization Arnold Ventures. The Arnold organization would also pay for grants enabling independent researchers to study the impact of the program on Baltimore’s soaring crime rate. The city has sustained over 300 homicides annually for the last five years. The surveillance aircraft would only be used to assist in the investigation of murders, non-fatal shootings, armed robberies and carjackings. The program did not involve real-time surveillance. (here)

The resolution on the images captured was limited to one pixel per person or vehicle. Each figure would therefore appear as a single dot that could be tracked from a crime scene. The system did not deploy infrared or night vision technology. The data was required to be deleted after forty-five days if it was not necessary for an investigation. However, the data retention period could be extended if the pilot program was successful. The success of the program was to be evaluated on the basis of whether aerial surveillance assisted the police in solving more crimes, whether it enhanced community relations and the impact of its deterrent value.

3. Injunction Application

On April 9, 2020, the American Civil Liberties Union filed a Complaint for Declaratory and Injunctive Relief in the United States District Court, District of Maryland, styled as Leaders of a Beautiful Struggle v. Baltimore Police Department. (here) Leaders of a Beautiful Struggle (here) is a Baltimore-based LLC think tank that “advances the public policy interests of Black people in the city through youth leadership development, political advocacy, and intellectual innovation.” (para. 9) The lawsuit asserts that the surveillance program, called Aerial Investigation Research (AIR), would use wide-angle camera systems to collect images of over ninety percent of the city “creating slow-frame-rate video recordings of pedestrians on sidewalks, parks, driveways, and back yards, and vehicles moving about on public streets and private lots.” (para. 2)

The lawsuit claims that the warrantless AIR program violates the Fourth Amendment to the Constitution of the United States “because it infringes upon a reasonable expectation of privacy in the whole of Plaintiffs’ movements and captures information about the privacies of life.” (para. 69) The constitutional violation is threefold. First, the program results in “indiscriminate searches of Plaintiffs lacking any individualized suspicion or judicial approval.” Second, the post-capture “use and analysis of information collected” is without judicial authorization. Third, the procedures governing the surveillance are constitutionally unreasonable. The application for a preliminary injunction was denied by Judge Richard Bennett in the district court. The plaintiffs appealed.

4. Fourth Circuit Opinion

On November 5, 2020, the divided opinion of the United States Court of Appeals, Fourth Circuit, was released. (here) Writing for the 2-1 majority, Judge Harvie Wilkinson held that the AIR program did not violate a reasonable expectation of privacy in light of the “cardinal rule that emerges from the Supreme Court’s case law […] that an individual has a limited expectation of privacy in his or her public movements.” (p. 10) What a person knowingly exposes to the public “is not a subject of Fourth Amendment protection.” However, in a strong dissent, Chief Judge Roger Gregory held that the majority opinion rests “on a fundamentally warped understanding of the facts.” (p. 26) The AIR program amounted to “long-term surveillance” that compiles “a detailed and comprehensive record” of a person’s past movements. The opinion of the United States Supreme Court in Carpenter v. United States, that I discussed in a previous post to On The Wire, is therefore not only relevant, but “[i]t controls the outcome.” (here) The plaintiffs petitioned for rehearing en banc.

5. Amici Curiae Brief

On November 25, 2020, an amici curiae brief was filed by the Electronic Frontier Foundation and five other organizations in support of the plaintiffs application for rehearing. (here) The amici brief urged the full Fourth Circuit to reconsider the application of Carpenter where the Supreme Court held that the Fourth Amendment protects the records of an individual over time. It was recognized in Carpenter that a detailed history of a person’s location, collected from cell site location data, reveals “profoundly sensitive” information including political, professional, religious, and sexual associations. “The same features that make CSLI collection so invasive are present in equal, if not greater, measure in the AIR program,” the amici wrote. “The AIR program […] creates a ‘detailed, encyclopedic’ record of the movements of Baltimore residents […] Its ‘retrospective quality’ allows law enforcement to ‘travel back in time’ to track those residents  – 12 hours a day, for 45 or more days.” (pp. 4-5)

The amici brief also put the AIR program in the context of the harm that police surveillance causes to communities of colour. Before the Baltimore program, “PSS operated surveillance flights over Compton, California; Philadelphia, Pennsylvania; and Dayton, Ohio,” the amici argued. “[A]uthorities have deployed aerial surveillance technologies against individuals participating in racial justice movements, like those protesting against the police killings of George Floyd in Minneapolis, Michael Brown in Ferguson, and Freddie Gray in Baltimore.” The combination of these “racial disparities” and the “novel surveillance technique” in the AIR program justified rehearing. The Fourth Circuit agreed.

6. Rehearing

On February 5, 2021, the City of Baltimore’s spending board unanimously decided to end the AIR program. The six-month pilot project had terminated in the fall of 2020. The police, however, retained about fourteen percent of the data collected by PSS. On March 8, 2021, during oral argument before the full 15 member Fourth Circuit, Judge Wilkinson pondered whether the injunction application should therefore be dismissed as moot. Chief Judge Gregory replied that the question is whether the police should have had the data in the first place “and mootness is not a way to find out.” He stressed the need for the court to settle the broader data collection issue despite the termination of the program. “How on earth is this court not empowered to answer that?” he said. The court reserved decision. (here)

The requirement of a warrant for aerial surveillance is not without precedent at the state level. In State v. Davis, the New Mexico Supreme Court considered the warrantless aerial surveillance of the defendant’s property and curtilage that disclosed marihuana growing on the property. (here) The court held that “prolonged hovering” close enough to the ground to cause interference with Davis’ property transformed the surveillance from a lawful operation of an area left open to public view to an unconstitutional intrusion into Davis’ expectation of privacy in violation of the Fourth Amendment. Justice Richard Bosson premised a “strong preference for warrants” on the basic principle that a “judicial warrant has a significant role to play in that it provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime.” (p. 51)

7. Conclusion

Critics of the AIR program say it violated the right to privacy, functioning as a dragnet by recording the movements of innocent civilians swept up in the data with the targets. (here) It has been called “the most far-reaching surveillance system ever deployed on American soil.” (here) It also appears that the cost has far exceeded any benefits achieved in light of the program’s “problematic history and unimpressive efficacy”. (here)

In a report compiled by the Baltimore Police Department, it was found that the AIR program was working “to some degree”. Surveillance data was used in about 200 investigations and “some of those cases had a higher closure rate”. However, the report conceded that “the program has not collected sufficient data to make a definitive conclusion” on its broader success. In a post-program report prepared by the Policing Project at New York University School of Law (here), it was suggested that the injunction should be granted and any similar program should first receive legislative approval. “The program’s potential for invasive surveillance is too great to be implemented without democratic authorization by a representative body,” the report found – suggesting that any mass surveillance program should be overseen by elected officials and not administered by way of side deals between philanthropists and the police.

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