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.

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.”

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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.

This article was produced in partnership with the Pulitzer Center.

A U.S. District Court judge is set to rule by Friday on an ACLU lawsuit that seeks to block the Baltimore Police Department from using airborne surveillance images via the city’s controversial Aerial Investigation Research (AIR) pilot program.

Three privately funded planes would fly over Baltimore, up to 84 hours weekly, for six-months under a contract between the Ohio-based Persistent Surveillance Systems and the Baltimore Police Department, beginning in May. The planes, equipped with a sophisticated 192-megapixel full-color camera system (named HawkEye), would capture images of people’s outside movements on Baltimore streets and sidewalks, as well as their own backyards, according to ACLU and police department legal briefs focused on the constitutionality of the program.

The city’s Board of Estimates approved the contract and pilot project now in federal court by a 3-2 vote three weeks ago. Mayor Bernard C. “Jack” Young, who controls the majority of votes on the Board of Estimates, voted to greenlight the initiative. City Council President Brandon Scott, among those running against Young for mayor in upcoming Democratic primary, does not support the surveillance program—or “spy planes”—as the effort is often derided.

The stated objective of the initiative is to help the Baltimore Police Department investigate murders, shootings, armed robberies, and carjackings with collected surveillance images. Baltimore, which has witnessed more than 300 homicides in each of the last five years, is essentially serving as a test case for potentially similar surveillance initiatives in other cities, the ACLU says.

Baltimore City has become a constitutional battleground for national public privacy issues.

The constitutional and civil rights dispute coincides with the fifth anniversary of Freddie Gray’s death from injuries suffered while in police custody on April 19, 2015, with subsequent riots and weeks of protests. The following year, as city anti-police brutality activists protested a not-guilty verdict handed down for police officer Caesar Goodson, Jr.—the driver of the van in which Gray was detained—aerial surveillance was being secretly conducted by the same company and Baltimore Police Department.

That publicly undisclosed program, first reported by Bloomsberg Businessweek after a tweet inquiring about the strange constant circling of planes overhead, was halted in 2016 amid criticism of its secrecy and condemnations from civil liberties advocates who made the case that the system represents a sweeping overreach of surveillance that violates individuals’ rights.

The new effort has already run test flights to collect aerial imagery as part of the program’s restart, court filings show. But the BPD agreed to temporarily suspend any current flights while awaiting the federal ruling expected by the end of this week. Meanwhile, Baltimore City has become a constitutional battleground for national public privacy issues.

If sanctioned by the federal court, Baltimore would become the first U.S. city to formally approve and implement military-style technology known as Wide Area Persistent Surveillance in an effort to fight crime, likely opening the door for further surveillance programs in Baltimore and elsewhere.

“What happens here would set a precedent for what happens in the rest of the nation,” Jay Stanley, a senior ACLU national policy analyst, said during an ACLU virtual press conference earlier this month. “This is one of the biggest privacy issues I’ve seen come down the pike.”

David Rocah, an ACLU of Maryland senior staff attorney, went further, comparing the effort to those found in dystopian novels. “Baltimore’s spy plane program, or Wide Area Persistent Surveillance, is an Orwellian nightmare come to life,” Rocah said.

In a flurry of legal briefs, motions, and responses filed last week, ACLU and Baltimore Police Department lawyers argued whether such aerial surveillance violates the U.S. Constitution’s First Amendment, an individual’s right to free speech and assembly, and the Fourth Amendment—primarily the freedom from government searches deemed unreasonable under the law.

Under the proposed pilot, aerial cameras would collect imagery data up to 12 hours a day over “major portions” of the city, weather permitting, with “a resolution of roughly one pixel per person,” according to the BPD. Such images could be checked against other city surveillance technologies, including CitiWatch cameras, license plate readers, and a web of visual data police say could identify the suspects or witnesses present at a crime scene.

Police leaders contend today’s AIR pilot program would ensure privacy limits and transparency, partly via potential “robust independent” evaluations by Morgan State University, the RAND Corporation, and University of Baltimore.

Baltimore’s police department has a documented, long-troubled civil rights history. A U.S. Department of Justice report in 2016 found the BPD engaged in patterns of conduct that violated the Constitution’s First and Fourth Amendments, leading to a consent decree detailing reforms. Such reforms emphasize building a “bond of trust” between the community and police.

Erricka Bridgeford, co-founder of the Baltimore Ceasefire project and a plaintiff in the ACLU lawsuit, believes the AIR program would further erode community trust, and that aerial surveillance will hinder community outreach efforts. “[The police department] should not have access to advanced technology,” she said, that creates an opportunity “to violate people’s rights. Also, I think it undermines the work that good officers are trying to do in the community.”

On Tuesday, a Morgan State survey reported city residents’ widespread dissatisfaction with police.

BPD has said the pilot program would comply with the consent decree. Under the contract, Persistent Surveillance Systems will analyze captured images when requested by police for investigations into targeted, violent crimes. Collected images can be scanned backward and forward in time. The BPD says it will not conduct live surveillance day-to-day in coordination with the company operating the planes. That said, Baltimore Police Commissioner Michael S. Harrison also has discretion to request data analysis under “extraordinary and exigent” circumstances.

“Though the program’s objectives to reduce crime and violence are laudable, the Constitution dictates that this all-seeing and ever-present ‘eye in the sky’ is not an available solution.”

The ACLU contended in its request for a preliminary injunction earlier this month that the program would create “the most-wide reaching surveillance dragnet ever employed in an American city, giving the BPD a virtual, visual time machine whose grasp no person can escape.”

The century-old civil rights organization said that “though the program’s objectives to reduce crime and violence are laudable, the Constitution dictates that this all-seeing and ever-present ‘eye in the sky’ is not an available solution.”

Baltimore Police Department attorneys have countered by citing past court rulings on aerial photography use in investigations, most from the 1980s prior to recent advances in technologies. In response to the ACLU suit, BPD emphasized program support by several local churches and a city “level of violent crime that has reached tragic proportions,” including 348 homicides in 2019. BPD called the aerial surveillance “simply a creative, technological assist.”

The estimated nearly $3.7 million cost of the pilot would 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 remain unclear.

Former Baltimore mayor Sheila Dixon, who is running again for mayor, supports the surveillance plane pilot. Former city police department spokesman T.J. Smith, former state deputy attorney general Thiru Vignarajah, and former U.S. Treasury official Mary Miller—all running for mayor—support the pilot program. The Arnolds have made significant contributions to Vignarajah’s campaign.

“It is not BPD’s burden to show that the AIR program is constitutional at this stage,” Baltimore Police Department attorneys argued in their filing, noting the city is already surveilled by police helicopters, speed and red light cameras, as well as CCTV, CitiWatch, and the private security systems in nearly every neighborhood. “Observations of public movements are expected in Baltimore,” police department attorneys stated. “It cannot be that the public recognizes the abundance of cameras potentially capturing their activities in the public thoroughfare and still maintains a ‘reasonable’ expectation of privacy.”

The ACLU says aerial surveillance that spans up to 90 percent of the city is unique and goes too far.

“Yes, you are traveling public roads, but this program tracks all of it on a widespread scale,” Ashley Gorski, a staff attorney with the ACLU National Security Project, said in a recent interview. “The government can do this if it gets a warrant, but there’s no warrant that can be authorized for that kind of collection for 600,000 people in the city.”

“The government is capturing the whole of an individual’s movements,” Gorski continued. “They can capture everything you are doing, exposing the privacy of how you live your life, if you go to the pharmacy or a gay bar or an Alcoholics Anonymous meeting.”

“[The government can] capture everything you are doing, exposing the privacy of how you live your life, if you go to the pharmacy or a gay bar or an Alcoholics Anonymous meeting.”

On a broader legal scale, the court battle reveals how case law and U.S. Constitution interpretations often lag behind rapidly changing technologies.

Central to the ACLU’s argument is a 2018 U.S. Supreme Court case, Carpenter v. United States, which ruled that police access to a person’s cell phone location data without a warrant violates the Fourth Amendment. The Baltimore Police Department argues that cell phone tracking (via data generated when a mobile phone communicates with a cell tower) is not the same as aerial surveillance. Wide Area Surveillance cameras in general, however, have a range of capabilities, including the ability to capture higher resolution, zoom, and long-term real-time images, as outlined in a U.S. Department of Homeland Security report.

Such technologies can also be used via drones.

The ACLU says it understands crime-fighting concerns, yet also sees widespread potential for abuse.

“The city is fearful, feeling like there are a lack of viable solutions to the crime problem, so people are turning to technology to be a panacea,” Gorski said. “But the costs are far too high.”

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J. Cavanaugh Simpson is a freelance journalist based in the Baltimore area. This article was supported in part by a reporting grant from the Pulitzer Center. Simpson can be contacted via Twitter @JoCavanaughSim1.