海角大神

Can police legally surveil a huge swath of a city from the air, using software to track people鈥檚 movements?

This question is what The United States Court of Appeals for the Fourth Circuit is set to consider next month, as it examines the constitutionality of the Aerial Investigation Research (AIR) program, a first-of-its-kind, police-sponsored surveillance program tested last year in Baltimore.

At issue is whether planes equipped with high-resolution cameras that flew over the city from May through October violated residents鈥� Fourth Amendment rights. Complicating matters is an antebellum law that limits the Baltimore City Council鈥檚 authority over its police.

Ashley Gorski, a senior staff attorney for the American Civil Liberties Union, who has argued for the plaintiffs, says the program violated 鈥渁 reasonable expectation of privacy.鈥�

But the and on the Fourth Circuit have disagreed, first denying the preliminary injunction and permitting the pilot program to operate before the panel鈥檚 November decision affirmed the lower court鈥檚 ruling. 鈥淭he program has been carefully designed to impose a minimal burden on constitutional rights,鈥� the majority wrote.

Though the program ended last October, and the city鈥檚 new, the reconsideration in March by the full, 15-member Fourth Circuit could determine whether the technology is permitted other places in the future, and, if allowed, under what conditions. Regardless of the court鈥檚 ruling, the larger question also remains: Did the program actually help to make Baltimore safer?

Julio Cortez/AP

Marvin L. Cheatham Sr., who led his local NAACP chapter in the 1990s, mows the grass in the park he built in West Baltimore on April 29, 2020, following the riots sparked from the 2015 Freddie Gray arrest. For six months last year, nearly the entire city of Baltimore was constantly recorded from the sky. Cheatham said he was OK with this - even though police had no search warrant, and the overwhelming majority of the roughly 600,000 people in Baltimore had committed no crimes - because the city was so besieged by violence.

鈥淚f the courts allow this surveillance to go forward,鈥澛� says Ms. Gorski, 鈥渋t will radically alter the relationship between the individual and the state.鈥�

Pixels and privacy

When demonstrations occurred last summer, the surveillance planes flew overhead in Baltimore, watching people, protests, and police from above. The planes captured footage of 32 square miles, with individuals represented as a single pixel. The ACLU鈥檚 Ms. Gorski says the technology is 鈥渃apable of subjecting every square inch of the city to constant recording.鈥�

But under the program detectives could request the aerial surveillance footage only after a crime had been committed. No distinguishing characteristics, like a person鈥檚 race or gender, can be identified from the footage, said Michael Harrison, the city鈥檚 police commissioner,. The moving dots are tracked to and from a crime scene and the footage is used in conjunction with other ground-based security cameras, license-plate readers, and gunfire locators as a tool to help solve crimes.

鈥淥ur job is to deter people,鈥� says Ross McNutt, founder and president of the Ohio-based Persistent Surveillance Systems, which operated the surveillance planes and produced evidence packets for the Baltimore Police Department (BPD).

It鈥檚 not yet clear whether the program is more effective at solving crimes than policing methods that were already in place. The Baltimore police 390 armed robberies from May 1 to July 31 last year. According to the same report, confirmed by the Rand Corp., a nonpartisan research institution hired to evaluate the program, fewer than a fourth of those robberies were committed during the day, when the planes were operating. An even smaller number were actually recorded by the aerial cameras.聽

A Rand published in January provided 鈥渘o conclusions on the effectiveness of the AIR program,鈥� but offered preliminary information showing slight increases in clearance rates for cases using AIR evidence. Rand is set to release its final report on the program in spring 2022.

Mr. McNutt鈥檚 company has a pending in St. Louis that would allow the plane to fly day and night, but the contract has not yet been signed by the mayor. The organization, Arnold Ventures, headquartered in Houston, which financed the Baltimore operation and three program evaluations at a cost of roughly $3.7 million, it will not fund the St. Louis program.

Patrick Semansky/AP/File

Michael Harrison, acting commissioner of the Baltimore Police Department, speaks at an introductory news conference in Baltimore on Feb. 11, 2019. The Baltimore Police Department has revealed the aerial surveillance system being tested in the city since May has provided officers evidentiary information in 81 cases, including 19 homicides.

Who decides?

Complicating the issue is an 1860 law that places the Baltimore Police Department under the authority of the state legislature, even though the almost all the department鈥檚 expenses. Under this arrangement, the City Council lacked the opportunity to vote on whether to approve last year鈥檚 program, nor can it regulate its conditions.

鈥淒emocratic control, accountability, protection of civil rights and civil liberties ... all of those are important components of public safety,鈥� says Farhang Heydari, the executive director of the Policing Project at New York University School of Law, which and filed a supporting neither party, but encouraging the Fourth Circuit to rehear the case.

During the pilot program, accountability and local democratic control were lacking, says Lawrence Grandpre, the director of research for Leaders of a Beautiful Struggle, a grassroots Baltimore think tank, represented by the ACLU in the case.

Mr. Grandpre鈥檚 organization has been advocating returning control of the police department from the state legislature to the City Council since before聽Freddie Gray died while in police custody in 2015.

鈥淭he hope is that by returning legal authority to the city you can have a more democratically accountable relationship to the Police Department,鈥� Mr. Grandpre says. 鈥淭his returning of the BPD to the hands of the City Council, to the hands of the Baltimore City, would just be one further step toward creating what we hope is more grassroots, broad-based accountability in Baltimore.鈥�

Brandon Scott, Baltimore鈥檚 mayor and previously the City Council president, sees the move as 鈥渆ssential鈥� for the department and will be advocating for local control during the state鈥檚 legislative session, spokesperson Stefanie Mavronis said in an email.

With the court case scheduled to be reheard the second week of March, Mr. Grandpre says, 鈥渢he legal victory that we hope to get is one piece,鈥� but adds that another goal is reframing conversations around public safety.

鈥淲hat we need to do is fundamentally rethink the reality of why people see violence as necessary,鈥� he says, 鈥渁nd build an infrastructure that addresses those needs.鈥�