Editor's Note: This article was produced in partnership with the Pulitzer Center.
High-tech aerial surveillance cameras will soon be coming to a cloud near you, Baltimore.
A U.S. District Court judge gave the go-ahead Friday to a controversial Baltimore Police Department pilot program known as Aerial Investigation Research (AIR), which will collect images of vehicle and pedestrian movements across 90 percent of the city—up to 12 hours daily—for six months starting this week.
Among his reasons for green-lighting the program, Judge Richard D. Bennett cited previous court rulings that have allowed warrantless camera surveillance and the “highly relevant” level of violence “afflicting the City of Baltimore.”
The Baltimore Police Department (BPD) has described the widespread aerial surveillance system as “simply a creative, technological assist” in fighting crime. Critics and the ACLU, which filed a lawsuit on April 9 seeking to halt the police department program, have decried the privately operated “spy planes” as an unconstitutional invasion of personal privacy and freedom from unreasonable government searches.
Judge Bennett concluded, however, that the ACLU lawsuit plaintiffs failed to meet the “heavy burden” needed to support a preliminary injunction.
“In a city plagued by violent crime and desperately in need of police protections, the public interest clearly does not favor the imposition of a preliminary injunction blocking constitutionally sound police programs,” Bennett said in his opinion. “The AIR pilot program may proceed.”
The ACLU, which plans to appeal the decision, disagreed, in particular on constitutional and civil rights grounds.
“It is tragic and unacceptable that the failures of the Baltimore Police Department, and the city’s long-term unwillingness to address the root causes of crime, have now led to the decision to impose the most far-reaching mass surveillance program in American history here in Baltimore,” David Rocah, senior staff attorney at the ACLU of Maryland, said after the ruling. “If allowed to stand, this ruling is a decision that the city, and the country, will come to regret.”
“Baltimore is a city with a terrible history of racism and lack of accountability for abuses by police, which only further compounds our concerns about this program’s potential for misuse,” Rocah added. “We are hopeful that the courts will eventually recognize the serious constitutional issues here and stop the persistent aerial surveillance program.”
A previously secretive, publicly undisclosed iteration of the program—first reported by Bloomsberg Businessweek in 2016 after a tweet inquiring about the strange constant circling of planes overhead—was halted amid condemnations from civil liberties advocates.
We will appeal a federal court decision to allow the aerial surveillance pilot program to move forward. The program would put almost all Baltimore residents under constant, aerial surveillance.— ACLU of Maryland (@ACLU_MD) April 24, 2020
We can’t trust Baltimore Police to use spy planes. https://t.co/nOG0gMu1gQ
Baltimore Police Commissioner Michael Harrison said he was pleased by the federal court ruling and that it will enable city police to move forward with the program as scheduled.
“The planning of the program’s implementation has been measured and deliberate, putting into place additional safeguards, oversight and review,” Harrison said in a statement released by the department. “I take very seriously the utilization of every legal and moral tool to address the unacceptable levels of violence that often besieges our most marginalized communities. The program will be submitted to great scrutiny during this pilot phase and I will continue to be cautiously optimistic about the potential. Ultimately, the data will show us the efficacy of this technology as a potential tool for the department in solving and reducing violent crime.”
The estimated nearly $3.7 million cost of the pilot will be funded by Arnold Ventures, a limited liability corporation founded by Texas philanthropists John Arnold, a former Enron executive and hedge fund manager, and his wife, attorney Laura Arnold. Future costs or funding support for the program remains unclear.
Harrison has said previously it is in the private company’s interest to abide by the memorandum of understanding (MOU) limitations with the department. Part of the existing MOU includes transparency around any potential technology upgrades—for example, the production of higher resolution images beyond one pixel per person, which currently prevents identification by race or gender, police say.
If the program is shown to be effective in Baltimore, there is every likelihood it could prove attractive to cities and towns across the country.
“They [Ohio-based Persistent Surveillance Systems and Arnold Ventures], are relying on us to vouch for them,” Harrison said previously. “So this can be used in other cities. We are literally their only reference.”
The BPD anticipates the program beginning sometime this week.
Among lawsuit plaintiffs are Baltimore community advocates Leaders of a Beautiful Struggle, a grassroots public policy think-tank; Erricka Bridgeford, co-founder of the Baltimore Ceasefire project; and Kevin James, a community organizer and hip-hop musician known as Son of Nun.
The plaintiffs have said such widespread surveillance would violate privacy rights, give more power to a police department with a documented history of civil rights violations, and impede community relations.
“The last thing the citizens of Baltimore need right now is to be watched every minute of every day,” James said. “Would you try and repair a relationship by spying on someone?”
In Friday's opinion, Judge Bennett did note that the actual precision of collected images, described as dots that won't identify personal characteristics, has not yet been proven. Plaintiffs also have standing under the First Amendment, he wrote, to “challenge the collection and retention of data associated with them.” There's “no dispute” plaintiff's images “will be captured by the airplanes deployed by Persistent Surveillance Systems and that those images will be preserved in a server it maintains.”
Unanalyzed imagery data collected by the sophisticated camera system, which will capture “32 square miles of the city every second,” will be stored by the company for 45 days, unless part of an investigation, police say.
The six-month pilot is also set to go forward despite Gov. Larry Hogan's stay-at-home orders and staged re-opening plan that limits future public gatherings, which the ACLU has contended would undermine any effort to prove the trial program's effectiveness in fighting crime.
“I find this bizarre given that the purported purpose of the pilot is to gather data to see if this is effective and whether there is a deterrence effect,” says Ashley Gorski, a staff attorney with the ACLU National Security Project. “How can they possibly measure the plane's deterrence effect when there is a stay-at-home order? It makes no sense at all.”
In response, the BPD has argued that data collected will be meaningful because crime has continued in recent weeks despite the governor's social-distancing and stay-at-home orders.
“As of April 13, 2020, Baltimore had experienced 81 homicides, five more than the same duration of time in the prior year,” the police department noted in its response to the ACLU suit. “Certainly, there is no shortage of murders, shootings, and armed robberies requiring investigation.”
There's no indication that police would use the surveillance planes to enforce the stay-at-home order or related law enforcement, under the contract between BPD and the private company, Ohio-based Persistent Surveillance Systems, which specializes in such military-grade technologies. Company videos reveal the Wide Area Surveillance system's capabilities.
Under the contract, police access to surveillance images is limited. Police say they will request the company's analysis of visual data for targeted violent crimes—such as homicides, shootings, armed robberies, and carjackings—though Commissioner Harrison also has discretion to request data analysis under “extraordinary and exigent” circumstances. Gorski adds: “There are no guardrails for that discretion.”
Plaintiff Dayvon Love, director of public policy with Leaders of a Beautiful Struggle, called the district court's decision “extremely disappointing.”
“This kind of technology should not be in the hands of any police department, especially one with a history of pervasive corruption,” Love said. “This technology will compound the harms inflicted on residents who have been impacted by well-documented police abuses in Baltimore.”
J. Cavanaugh Simpson is a former reporter for The Miami Herald and a freelance journalist based in the Baltimore area. She can be followed via Twitter @JoCavanaughSim1.