Baltimore’s newly revealed surveillance program raises legal questions

Police program obtained through private contractor, which allows small plane to film 32-mile section of city, has been criticized as intrusive and possibly illegal

Legal and constitutional questions have been raised over revelations that the Baltimore police department used privately contracted surveillance technology to secretly monitor vast swaths of the city, lawyers and civil liberties advocates say.

The program, confirmed for the first time by police officials on Wednesday, allows a small plane to film a 32 square mile section of the city. The tape is saved and stored and analysts can move about in time and space in order to track vehicles or individuals, although individual human characteristics arent discernible. Russ McNutt, the founder of the Ohio-based Persistent Surveillance, likened it to Google Earth with Tivo.

The Baltimore police department entered into a trial agreement with Persistent Surveillance in January and the company has filmed the city for 300 hours and provided the police department with over 100 investigative reports. According to Bloomberg BusinessWeek, which broke the story earlier this week, McNutt developed the program for the Pentagon in 2006 and in 2007 it was used in Iraq.

Legal experts, struggling to catch up with a program that police just admitted exists, are questioning how these tactics will hold up in court.

Its highly intrusive surveillance, said Natalie Finegar, the deputy district public defender, whose office expressed outrage over the program, which was revealed two weeks after the Department of Justice issued a scathing report claiming that the department regularly violated the rights of citizens.

Baltimores police commissioner, Kevin Davis, said in a statement that the technology was a reasonable response to the citys extreme violence. At a time when 84% of our homicides occur in outdoor public spaces, it seems logical to explore opportunities to capture the brazen killers who dont think twice about gunning down their victims on our streets, he said. And police spokesman TJ Smith said the technology has been central in several arrests.

Finegar said arrests that relied on the surveillance could be subject to legal challenge.

If youre walking down the street and see a blue light camera and its been publicly discussed and there were hearings about it, then you understand that you could be being videotaped. But if you have a Cessna flying up out of sight on random days with a 32-mile radius, then it starts to become what legal analysts call aggregate data and that has not been held up by some of the appellate courts.

Shahid Buttar, a constitutional lawyer with the Electronic Frontier Foundation, said the law hasnt even yet evolved to reach these circumstances.

The court is only now grappling with these kinds of mass surveillance technologies, and the supreme court at least has never ruled on a case like this, said Buttar. Its not the case that this is legal. It is the case that no court has had the chance to clearly declare it illegal yet.

Jake Laperruque, a privacy fellow at the Constitution Project, said similar issues are now being litigated.

Theres a strong case to be made, based on what the supreme court has said in the past, that there is a constitutional right to be free from pervasive location tracking without court authorization, he said.

He added that, absent answers from the Baltimore police about when and how the surveillance technology is used, there definitely is potential for serious abuse.

Whats to say that the Baltimore police couldnt zoom in on a protest, on a religious ceremony, on an abortion clinic, or just to track people in an arbitrary or improper manner? he asked.

Part of the problem with ascertaining illegality is that some of the most objectionable practices are being performed by the private company, Persistent Surveillance, and not the police themselves. It is staff of the company who fly the plane, review the tape, and provide reports to police.

What the private company here is doing would be flatly illegal for the government to do, Buttar said, noting the irony of the companys name. Persistent surveillance has been held unconstitutional by the supreme court [in] US v Jones.

Who owns the material is also important, Finegar said. Does it belong to law enforcement or is this company now a state actor for purposes of discovery? Or are they going to try to say that is not discoverable material, its not in the hands of the state?

Finegar faces a practical problem: her office has no way of knowing which cases the technology was used in or what role it played in an investigation.

It feels less like an investigative tool and like a potential for big brotherhood, Finegar said. It really needs to be regulated and it needs to be openly discussed.

It was the city public defenders office that uncovered earlier this year the details of the police departments use of another form of surveillance, Stingray technology, which uses cellphone data to locate individuals without a warrant.

Last April, Marylands second highest court ruled that using Stingray to obtain warrants was unconstitutional, calling into question hundreds of cases.

The city council has said it will hold a hearing about the program next month. The commissioner keeps talking about transparency, but every time we turn around, theres something else where were left on the outside, councilman Warren Branch told the Baltimore Sun on Thursday.

With reporting by Ciara McCarthy

Read more: https://www.theguardian.com/us-news/2016/aug/26/baltimore-police-surveillance-legal-questions