Police see no problem with secret surveillance

"Like hanging a GPS tracker around every citizen's neck:" Persistent Surveillance meets persistent constitutio

Baltimore public officials scrambled last week to learn about high-altitude surveillance after Bloomberg Businessweek revealed that a private company funded by a wealthy Texas couple was flying a plane in service of the police department that could spot and follow everything that moves in a 30-square mile area.

The company, Persistent Surveillance Systems, had flown nearly 300 hours since the new year, and the police department had neglected to tell the mayor, other elected officials, or the public defender's office. They said the flights were a routine extension of existing efforts.

"This is effectively a mobile CitiWatch camera," BPD Spokesman T.J. Smith told a gaggle of reporters at a hastily-convened press conference at police headquarters on Aug. 24. "An additional tool that works with our 700 CitiWatch cameras to increase our chances of catching a suspect."

He insisted it was not secret, and not "surveillance." It was a bizarre scene.

Anthony McCarthy, the spokesman for Mayor Stephanie Rawlings-Blake, stood by silently. He later told reporters that the mayor "recently became aware" of the program, but declined to be more specific.

Ross McNutt, the founder and president of Persistent Surveillance Systems, would not say the name of his company's benefactors, even though the Bloomberg piece identified them as "John Arnold, a former Enron trader whose hedge fund, Centaurus Advisors, made billions before he retired in 2012," and his wife, Laura.

Persistent Surveillance Systems flies a single-engine Cessna at 8,000 feet, equipped with an array of high-resolution cameras which together can see about half the city at a time. When a 911 call comes in about a shooting or other serious crime, the plane flies to or focuses on the area. It can then rewind the video footage to see what or who arrived at a scene just before the event, and then track vehicles and people from the area.

The "plane goes where the calls for service go," Smith said, adding that it helped capture Carl Anthony Cooper, the alleged shooter of a 90-year-old woman and her 82-year-old brother who were shot in Walbrook in February.

"He is off the streets and was off the streets in a much quicker manner" than he would have been without the technology, Smith said.

Cooper was captured on March 4 in North Carolina.

Smith said other large cities are also testing the technology. But McNutt said his company is not working with any other cities currently.

The system will help with natural disasters like floods, and things like sinkholes and missing persons cases, according to Smith. He said the plane helps track illegal dirtbikers without the need to chase them in the street, which is dangerous. He and McNutt denied that the system was used to track protesters after the verdicts in the Freddie Gray cases, in which police officers were charged and acquitted in the 25-year-old's death.

"The bottom line is, we aren't surveilling or tracking anyone," Smith said. "We are responding to calls for service."

Common Cause of Maryland called the program a "deeply troubling practice by Baltimore Police that raises questions of transparency and accountability within the Department."

Open Society Institute-Baltimore called for "a complete disclosure of the program so that it can be reviewed by the community and experts in civil liberties."

The ACLU of Maryland called the secrecy "beyond astounding" and called for public hearings by the city council.

Councilmember Brandon Scott (2nd District), Vice Chair of the city council's Public Safety Committee, said he was working to schedule one soon.

"Just talking to some of my colleagues, the big issue is that no one knew about it," he told City Paper as news of the surveillance broke. "We don't even know enough about the actual program to make an informed decision. People want us to make an educated response."

Scott said that he's currently bouncing dates back and forth with the police department so that he can sit down and learn more about the program. "I'm going to try and meet with the commissioner to be briefed as much as possible about the plane," he said.

Scott said the issue points to something that's already been a hot topic here in Baltimore—how to deal with race and crime.

The Bloomberg piece notes that police surveillance planes have mostly flown over places with high concentrations of black residents like Compton, Los Angeles.

But Scott says that he actually hears from constituents who are looking for more surveillance as a way to stop crime.

"We have this report that says our police department has a lifelong history of treating African-American citizens in the wrong way," he said, referencing the Department of Justice report released earlier this month. "At the same time, I also have constituents and black people who are constantly asking me for more police and more CCTV cameras. How do we get to the happy medium? There is a way to do all this stuff without violating civil rights. It's a delicate balance that those of us in elected office have to strike."

At the press conference, Smith was asked repeatedly why the department did not inform the broader public about the system when it was first deployed. "We don't have announcements when we add cameras" to the CitiWatch program, he said.

The system was active for 100 hours in January and February, and then 200 more hours between June and now. Smith and McNutt said there is some time left on the contract.

The footage is reviewed by people McNutt hires. He said they work cheaper than sworn police officers.

Smith did not immediately answer reporters' questions about who has access to the footage, who owns it, or how long it's kept. He did suggest that the system had not been especially useful so far.

McNutt said his team prepared 102 "investigation briefs" for detectives. He did not say how many of these led to arrests; Smith said there were "a couple of instances."

During the time the aircraft was flying, the police received 18,500 calls for service, of which 560 were top priority.

City Paper asked Smith if police might considered using the surveillance capabilities as a way of being able to suss out allegations of police officer misconduct. "If information can be gleaned from the technology that would assist in an investigation of that nature it would be used," Smith said. "But again, you have to understand what this technology can glean. It is not showing you anything more than images being there and what direction the images move into. So if a dispute in something like this exists and the technology is available, yes, it would be used."

"This is the privacy nightmare come to life," said David Rocah, Senior Staff Attorney with the ACLU of Maryland. "It's what we were specifically warning about when we learned about the FBI flights."

During the emergency curfew imposed after the riots of April 2015, the FBI hired a private contractor to fly over Baltimore, surveilling crowds and individuals with both regular and infrared cameras for 36 hours. In response to Freedom of Information requests by both The Sun and the ACLU, the bureau released what it says is the entire trove of that footage on Aug. 4.

In both that case and this one, officials stressed that the resolution is too low to identify individuals, and that only criminals are targeted, in part because tracking each pixel on the screen takes a lot of work.

Rocah is not persuaded.

"Remember the resolution of these cameras is only going up," he said. "It's not going down. The amount of human labor necessary to follow the individual dots is only going down—it's not going up. The camera technology that to do this at a much greater resolution already exists."

What doesn't yet exist, Rocah said, is the legal framework to regulate this kind of surveillance.

On City Paper's request, the police department released a two-page legal analysis titled "Memorandum of Law in Support of the Constitutionality of Wide Airborne Motion Imagery." The document says the Supreme Court has a "relatively straightforward" test for determining citizens' privacy expectations under the Fourth Amendment, and cites two cases from the 1980s in which pot growers were busted by low-altitude overflights through which police officers could identify the plants with their naked eyes.

In another case, Dow Chemical Co. v. the United States, the court did take up the issue of technology. But in that case the camera was deemed to be an ordinary one usually used for mapping.

But those rulings turned, in part, on how common aircraft overflights were, and did not contemplate high-resolution camera arrays. In each case, the plaintiff was a targeted individual and the surveillance was short-term.

"They're utterly irrelevant because the privacy violation with this technology is orders of magnitudes greater," Rocah said. He likens the Persistent Surveillance system to hanging a GPS tracker around every Baltimorean's neck.

In 2012, in United States v. Jones, the Supreme Court decided that police could not slap a GPS tracker on a drug suspect's car and track its movement without a warrant. The late Justice Antonin Scalia wrote the majority opinion, holding narrowly that because the police had trespassed, the GPS was a search under the meaning of the Fourth Amendment. He left wide open the possibility that a non-physical tracking system would also be unconstitutional: "It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question."

Justice Sonia Sotomayor wrote a separate opinion disputing the constitutionality of even short-term warrantless GPS surveillance, while Justice Samuel Alito suggested in his concurring opinion that "[i]n circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way."

"We won't know the answer to whether it violates the Fourth Amendment," Rocah said, "unless and until a court rules on it."

He said the ACLU would wait until after the city council hearings to decide whether to file suit.

Additional reporting by Lisa Snowden-McCray.

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