By Courtney Ferguson
Baltimore Watchdog Staff Writer
A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit heard oral arguments Thursday in a case that challenges the Baltimore Police Department’s use of aerial surveillance planes to monitor activity on city streets.
The American Civil Liberties Union (ACLU), which took the case on behalf of the Baltimore advocacy group Leaders of a Beautiful Struggle, argued that the program violates the First and Fourth Amendment rights of citizens and should be shut down immediately.
They said the technology used by police allows law enforcement to track the movements of individuals and potentially build a database with private information about city residents.
“The [city’s] air program is the most ambitious mass surveillance program ever deployed in an American city, relying on military technology developed for battlefields abroad,” said Brett Kaufman, a senior staff attorney with the ACLU. “This will drastically change our democratic society.”
But the city argued that the plaintiff doesn’t have standing in the case because their fear that the police will collect comprehensive records of individual movements is speculative.
City Attorney Rachel Simmonsen also argued that it is unlikely that individuals could even be identified by the small Cessnas flying overhead because the photographs that are taken appear as single dots, or pixels, and individuals cannot be identified. The police department has said that identifying characteristics like a person’s clothing, ethnicity or license plate number “will not be discernible.”
“There is not enough to raise a question about the constitutionality,” Simmonsen told the panel. “A pixel doesn’t have a constitutional right, but a person does.”
The surveillance program was secretly started in 2016 but was put on hold when the news media reported its existence, starting a years-long struggle over its constitutionality. The department announced earlier this year that it planned to relaunch an aerial surveillance pilot program on May 1 that would run for 120 to 180 days to determine its effectiveness.
The AIR program is operated by Ohio-based Persistent Surveillance Systems and would include one or more aircrafts flying over the city at between 3,000 and 8,000 feet for about 40 hours a week. Police officials said they would be able to collect images over 90 percent of the city during that time.
The program’s purpose was to support investigations of serious crimes such as murder, shootings, armed robberies and car-jackings, according to police. The $3.7 million price tag is being picked up by Laura and John Arnold, Texas philanthropists who own Arnold Ventures, the Baltimore Sun reported.
Leaders of a Beautiful Struggle v. Baltimore City Police Department, initially filed in April, challenges the constitutionality of the Aerial Investigation Research (AIR) Pilot Program that would put all Baltimore residents under surveillance with hopes to improve public safety within the city.
A District Court judge ruled in late April that the department’s program could continue, prompting the ACLU to appeal.
The judges in yesterday’s hearing seemed skeptical of the ACLU’s claim that the program as construed would raise privacy issues.
“Things you most dread are possible applications that could happen down the road,” said Judge J. Harvie Wilkinson. “When we get there, then there is another case.”
Throughout the argument, both the plaintiffs and the defendants referred to the case Carpenter v. United States, which ruled on the constitutionality of using cell-phone data without a warrant.
When Wilkinson pointed out that individual’s movements can already be documented by looking at cell phone data, Kaufman countered that a person can stop that data collection by shutting off their phone.
True to the virtual age of COVID-19, the remote oral argument live-streamed on YouTube was put to a halt when Kaufman was abruptly removed from the chat.
As the argument came to an end, Kaufman left the justices with his take on the situation.
“Our founders would be horrified by what is going on in Baltimore,” he said.